20131023 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA - ATDODOMA ) APPELLATE JURISDICTION DC. CRIMINAL APPEAL NO. 56 OF 2011 (Original Criminal Case No. 76 of 2009 of the District Court of Kiomboi District at Kiomboi) MAHONA SENt @ MWANASEMA ................... APPLICANT VERSUS THE REPUBLIC ........................................... RESPONDENT JUDGMENT 07-08-2013 & 23-10-2013 R. K. MKUYE,J.: The appellant Mohana Seni @ Mwanasema was charged with and convicted of the offence of grievous harm contrary to section 225 of the Penal Code, Cdp. 16, RE 2002. The District Court of lramba at Kiombol sentenced him to five years imprisonment and to pay the complainant, Mohamed Omary (PW1) a compensation to the tune of shs. 1 ,000,000/= for loss of his arm. 1 It was the case of the prosecution that on the fateful date (30/5/2009) at about 20.00hrs, while PW1 was together with his fourth wife (PW3) were invaded at their home by the appellant under pretext to be given some tobacco. Though PW1 denied to have the said tobacco, the appellant insisted to be given the same by PW1 's wife (PW3). When PW3 was about to go inside to bring the tobacco, the appellant suddenly cut off the PW1's arm. He then continued to cut him on his neck and other parts of the body. Alarm was raised and Seif Hassan (PW2) responded where upon he managed to see the appellant cutting PW1. The appellant then chased him (PW2) while threatening to kill him as well. PW3, Ashci Kiula, who was together with PW1 gave similar evidence as PW1 and she added that the assailant cut the PW1 on witchcraft suspicion. PW1, PW2 and PW3 said they identified the appellant with the help of broad moonlight. In his defence, the appellant denied involvement in the commission of offence or even asking for tobacco from the victim because he did not know PW1. He complained further that the chopped arms' whereabouts was not investigated. After being aggrieved by the trial courts' decision, he has preferred this appeal against both conviction and sentence. 2 Ms Mwakyusa learned state attorney for the respondent argued the appeal alone as the appellant had indicated in his memorandum of appeal of his wish not to be present at the hearing of the appeal. The appellant has raised about ten grounds of appeal which can conveniently be reduced into the following: PW1, PW2 and PW3 did not know him before the incident because if he was known he would not have gone there without camouflaging himself. PW2's evidence contradicted with the evidence of PW1 and PW3 with regard the time the offence was committed (Whether on 20/5/2009 or 30/5/2009). Identification through bright moonlight was not sufficient. On her part, Ms Mwakyusa strongly resisted the appeal. Responding to the appellant main complaint of poor identification, she argued that, the appellant was sufficiently identified with the aid of bright moonlight. The learned state attorney referred to this court the case of Yassin MaulidKipanta and 2 Others V R (1987) TLR 183 where it was held that: 3 Where evidence against the accused is solely that of identification, such evidence must be absolutely watertight to justify a conviction". The Jegrned state attorney argued further that the appellant was known to PW1 as he was married to his brother in laws' daughter and she cited the case of Kusinza Richard VR hR (1989) 143 in support. On top of that Ms Mwakyusa submitted that there was conversation between PW1 and appellant before the incident when he demanded to be given tobacco by PW1. When PW1 refused he insisted to PW3 to bring it. Moreover, she argued that the fact that the appellant chopped off the PW1 's arm it shows proximity between him and PW1. She lastly prayed to court to dismiss the appeal. The crucial issue to be determined is whether or not PW1 was maimed by the appellant and for that matter the sub issue that follows is whether the appellant was properly identified. The evidence that links the appellant with the offence to which the trial court relied upon to convict him is that of PW1, PW2 and PW3. All the three witnesses testified that they identified the appellant with help of broad moonlight. PW1 and PW3 said they saw him when he came and asked to be given some tobacco. PW2 said, he saw him busy cutting PW1 with a panga when he responded to 4 the alarm that was raised at PW1 's home. PW1 and PW3 had known the appellant even before the incident as he (appellant) was married to his brother in laws' daughter. PW2 knew the appellant even by name. There is no doubt that the incident took place at night. It is cardinal rule that were evidence against the accused is solely of identification, such evidence has to be absolutely watertight to justify a conviction (See Yassin Maulid Kipanta's Case(Supra). Also, if is well settled that before basing a conviction on evidence of visual identification, such evidence must remove all possibilities of mistaken identify and the court must be fully satisfied that the evidence is watertight. (See Waziri Amani V R (1980) TLR 250. Also in the same Waziri Amani's Case (Supra) the court of appeal stated: "Although no hard rUles can be laid down as to the manner a trial judge should determine questions of identity, it seems to us that he could not be said to have properly resolved the issue unless there is shown in ....... We would, for example, expect to find in the record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred for instance, whether it was day or night time whether there was good or poor 5 light at the scene, and further whether the witness knew or had seen the accused before or not". After having examined the evidence of PW1, PW2 and PW3 I am of the considered view that they were truthful witnesses. With the help of broad moonlight and the distance between PW1 and PW3 and the appellant when he was demanding to be given tobacco; with the time spent in conversation with the appellant who was known to them (PW1 and PW3) even before the incident, I am inclined to agree with the trial court's finding that appellant was sufficiently identified. The appellant had married PW1 's brother in law's daughter or PW3's brothers' daughter. So they clearly knew him. PW2 who saw appellant cutting PW1 with a panga after he had responded to the alarm raised knew him even prior to the incident. I am convinced therefore that the requirements propounded in Waziri Amani's case (Supra) were met. The complaints raised by the appellant that he wouldn't have gone to PW1 's home uncomonflaged if they knew him; or that they did not know him are in my view a mere afterthought. The nature of the wound inflicted to PWT is an indication that he intended to kill and perhaps he thought he has already killed him. Also his conduct of chasing PW2 who responded to the alarm while threatening to kill him was intended to effect killing. All these acts were intended to avoid identity. With regard to the complaint relating to contradictions in evidence of PW1 and PW2 as to the time when the offence was committed between 30/5/2009 and 20/5/2009 respectively, of course, this is what is reflected in the typed judgment. However, I find this to be a mere topographical error because in the proceedings all the three witnesses testified that the incident took place on 30/5/2009. Even the handwritten judgment indicates that PW2 testified in relation to the incident ''hich took place on 30/5/2009. In that case I find that there was no contradiction as to the time when the offence was committed. Having so said, I find no reason to fault the trial court's finding that the appellant was properly identified. In other words, I find the identification evidence was watertight to justify the conviction metted against the appellant. In the final event, I find the appeal has no merits and it is hereby dismissed in its entirety. (R. K. MKUYE) JUDGE. 07/10/2013 7 Right of appeal is explained. (R. K. MKUYE) JUDGE 23/10/2013 Delivered on this 23rd day of October, 2013 in the absence of the appellant and in the presence of Mr. Sarara learned state attorney for respondent Republic. YE) 13 H.