miriam do soko vs republic 2013 tzhc 2169 13 june 2013

IN THE HIGH COURT OF TANZANIA AT SONGEA (DC) CRIMINAL APPEAL NO. 18 OF 2013 (Originating from Mbinga District Court Criminal Case No. 07/2013) MIRIAM D/O S O K O ........................ APPELLANT VERSUS « * THE REPUBLIC...... RESPONDENT JUDGMENT 10th & 13th June, 2013 KWARIKO, J. The appellant in this appeal MIRIAM D/O SOKO was arraigned before the District Court of Mbinga with the offence of Grievous Harm c/s 225 of the Penal Code Cap. 16 Vol. 1 of the Laws R.E. 2002. It was alleged by the prosecutionthat MIRIAM D/O SOKO chargedon the 30th day of December, 2012 at about 00.30 hours at ParadiseNight Club Manzese street within Mbinga District in Ruvuma Region did cut one JOYCE D/O KIHAKA with a piece of bottle on left side of her face. The appellant denied the charge and the prosecution brought two witnesses to prove the same. The evidence by the prosecution can be recapitulated as follows: PW1 JOYCE KIHAKA testified that on 30/12/2012 at 00.300 hours he found the appellant with her (PW l's) boyfriend one Japhet drinking beer. PW1 attacked Japhet whereas the appellant arose and assaulted her in return. The appellant went on, broke a bottle and used its pieces to cut her (PW1). She was hospitalized and her PF 3 was admitted in court as exhibit PI. PW1 said she identified the appellant as there was electric light at the scene. PW2 HAJI S/O MKANDU said was a watchman at Paradise Club where the scuffle between the appellant and PW1 arose at about 21.oo hours on 29/12/2012. PW2 said saw the appellant attack PW1 with a bottle and injured her face. That there was electric light in the club. In her defence the appellant testified on her own behalf and called no any witness. She testified that on 29/12/2012 whilst at Paradise Club the complainant, PW1 alleged that the man she was sitting with was her boyfriend hence should leave him alone lest could be beaten. Then PW1 assaulted her but she (PW1) fell on the ground where there were pieces of bottle that injured her. At the end of the trial the Court found that the prosecution case was proved to the standard required in law, the appellant was found guilty, convicted and was sentenced to five years imprisonment. The appellant was also ordered to pay compensation to the complainant of Tshs. 500,000/=. Having been aggrieved by the trial court's decision the appellant filed this appeal where he raised two rounds of appeal firstly that no exhibit was tendered to prove how the offence was committed and that her defence was objected by the trial magistrate. » » During the hearing of the appeal the appellant reiterated her grounds of appeal land said first that the prosecution ought to have tendered the bottle of beer allegedly used to assault the complainant. Also, that her defence witnesses were not heard hence she was not given opportunity to present her defence. On the other hand the respondent Republic was represented by Mr. Mwamwenda learned Senior State Attorney. Though the learned Senior State Attorney found that the appellant's grounds of appeal baseless but all the same he supported the appeal on ground that the prosecution case was not proved against the appellant beyond reasonable doubt. This court agrees with the respondent that the appellant's grounds of appeal are baseless. As for the first grounds of complaint the court is of the view that it is not always necessary that an object used to assault someone should be tendered in court in order for a charge to be proved. Oral evidence find/or other exhibits may prove the charge. Therefore, in this case it was not necessary for the bottle of beer to be tendered in court to prove the charge if the prosecution found they had other pieces of evidence for that purpose. Secondly, as rightly submitted by Mr. Mwamwenda learned Senior State Attorney the appellant's complaint in relation to her defence witnesses is an afterthought. This is so because the trial court's record shows that when the appellant was addressed in terms^of section 231 of the Criminal Procedure Act Cap. 20 R.E. 2002 on her rights of defence she said she had no witnesses to call in her defence. She went on to give her defence and at the end she closed her defence case. Therefore, it is not true that the trial court denied the appellant to present her defence witnesses. Having been found that the appellant's grounds are non-meritorious the court join hands with the learned State Attorney that the issue to consider here is whether the prosecution case was proved against the appellant beyond reasonable doubts. Firstly, as rightly submitted by Mr. Mwamwenda learned Senior State Attorney the charge of Grievous Harm was not proved by the prosecution. This charge ought to have been proved by the medical expert who attended the complainant. It ought to have been explained if the complainant really sustained the injuries worth grievous harm. If the PF3, exhibit PI was the proof in this respect the same was received in court contrary to the law. In terms of section 240(3) of the Criminal Procedure Act [supra] the trial magistrate was obliged to inform the appellant of her right to have the medical officer who authored the PF3 to be made available for examination and/or cross-examination. This was not done and thus made the PF3 bad evidence. The Medical Officer would have been a proper person to explain the kind of injuries the complainant had sustained and what kind of object was used to inflict the same. « * Thus, the PF3 (exhibit PI) which was received contrary to the mandatory provision of the law is not good evidence and it is hereby expunged from the record [See the case of ARABI ABDU HASSAN VS R, Criminal Appeal No. 187 of 2005, Court of Appeal of Tanzania at Mtwara (unreported)]. Having been expunged the PF3 the issue that pose to be decided is whether the remaining piece of evidence is enough to prove the charge against the appellant. I would say that the complainant's evidence was not corroborated by another independent evidence. This is so because PW2 who purported to support PW l's account was not originally scheduled as witness. The record shows that during preliminary hearing on 8/1/2013 three witnesses were listed for the prosecution. These were JOYCE KIHAKA, ROBSON MWISHO and JAPHET GAUDENCE. However, of these three witnesses only JOYCE KIHAKA testified. Thus, PW2 gave evidence without any application by the prosecution to make him a witness and an order of the court to that effect. Thus PW1 testified by taking the other side by surprise which in my view denied the appellant to prepare herself for her evidence. The record does not show that PW2 was served with witness summons to appear to testify which means his appearance had no any legally recognized procedure. In that case the evidence by PW2 was illegal one and it is hereby discarded. As to why the other two witnesses originally listed did not testify the prosecution did not give any explanation. There is one JAPHET GAUDENCE who is said to be the source of the quarrel between the appellant and the complainant. He did not come to testify and no any reason was given for that. This was important witness since he is said to have been in the company of the appellant when PW1 attacked him. Thus he could have shed light to the court on what really happened and could have corroborated PW l's evidence if at all what she said was what happened that material night. Thus, failure by the prosecution to parade the said witnesses leads this court to draw adverse inference on the prosecution case. Having discarded the evidence of HAJI MKANDU the prosecution remains with PW l's evidence only. This means PW's evidence against what the appellant testified in his defence. If PW1 said in her testimony that she was the one who initiated the quarrel when she attacked JAPHET, then why would any one believe that she was attacked by the appellant in return. Why would the appellant attack PW1 if she was not the one who was assaulted in the first place. That is why PW l's evidence needed corroboration from other independent eye witness(es). * An independent witness would have told the court if the incident occurred the way PW1 explained or if the appellant's defence was anything to go by. Therefore, since it was the complainant's evidence against the appellant's evidence against the appellant's defence strong reason ought to be given as to why the former's account should be believed and the latter's to be ignored as the trial Court did. For the foregoing this Court finds that the prosecution failed to prove the charge against the appellant to the standard required in law i.e. proof beyond reasonable doubt. Therefore, the appellant's appeal is allowed, conviction quashed and sentence is set aside. The order of compensation is also set aside. j The court henceforth orders that the appellant be released from custody unless otherwise lawfully held. Order accordingly. 13/6/2013 Judgment delivered in court today in the presence of the appellant and Mr. 4 Mwamwenda learned Senior State Attorney for the respondent Republic. Ms. Eva Court Clerk present. M.A. KWARIKO JUDGE J3 / 6 / 2 W 3