20150430 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA APPELLATE JURISDICTION ·He.CRIMINAL APPEAL NO. 142 OF 2014 (Original criminal case no. 573 of 2012of district court ·of Nyamagana) MWITA SAMSON ....................................... APPELLANT VERSUS THE REPUBLIC ......................................... RESPONDENT JUDGMENT 15/4/2015 & 30/4/2015 GWAE,J. The appellant and one Samson Senso were jointly charged and tried by the trial courtof two offences notably: grievous -harm c/ s 225 of the penal code and sexual harassment c/ s 138D ( 1) of the Act, however the appellant was separately charged with an offence termed assault c / s 240 of the penal code. The trial court, in respect of first count,found the appellapt guilty of the offence of grievous harm· and sentenced him to 1 ' t l 1 : seven imprisonment and acquitted that other accused . person and it also convicted the appellant and the said Samson Senso (the appellant's father) in the 2 nd count of G the offence of sexual harassment, both were sentenced to one jail but during judgment delivery they said Samson Senso was at large as he jumped bail. The imposed sentences against the appellant were ordered to run concurrently. The appellant, having been aggrieved by the trial court decision and the imposed sentences thereof, appealed to this court filing five grounds of appeal as herein below summarised: 1. That the PF3 was tendered by the PW 1 and PW2 · inabsence of the medical practitioner. 2. That the trial court had not explained to the appellant the mandatory provisions of section 231 of CPA 3. That, the lower court had not properly analysed the evidence adduced . as a result to no observe the contradictions as to date of appellant's arrest. 4. That assertion by the victims that there was· a case before .Mkuyuni primary Court was not proved. 2 · 5. That the ten cell leader or chairperson was not called to prove the case. During hearing of this appeal, the appellant prosecuted his u appeal personally while the Republic was rep resented by Mr.Mamti assisted by Miss. Mwaseba, both the learned state attorneys. The appellant did not, verbally add anything to his written grounds of appeal contained in the petition of appeal except he left for the court to do justice in his appeal. Mr.Mam.ti in his part strongly supported both conviction and imposed sentences by submitting as follows: Firstly, he conceded that the PF3 was issued by the PW 1 and that the doctor was not summoned however the trial court relied on other evidence of PW 1 and PW3 who testified that it was the appellant who grievously harmed and that the evidence to that effect was adduced. In ground two, the responde!].t'S representative attacked it by stating that the appellant was procedurally afforded an opportunity and third appellant's complaint, admittedly, Mr.Mamti submitted that though it is true from the court record that contradictions as the criminal acts were 3 : cbmmitted on 16/8/2012 while the PW4 testified to be -8/3/2012 but that is purely typing error which does go to the root of the case. In complaint no.4 and 5, the Republic submitted that ground 5 th ground is legally meaningless since the case commenced and ended in the trial court and that the last complaint is also baseless as in laws there is no legal requirement to mandatorily require a leader testifies in court since he was not at the scene. Now, I should answer ground five and two jointly and briefly as rightly submitted by the Mr.Mamti, the learned state attorney, that there is no · legal requirement to summon a person who did not witnessed a criminal incident to appear and adduce, evidence which is a just mere hearsay has very little evidential value while there were eye witnesses in the scene of crime (PW 1, PW2 and PW3) In evidence, the most importantly credible and · ;reliable testimony is direct one,· by a person who witnessed or. perceived an occurrence in question pursuant to provisions of section62 of the Tanzania evidence Act which is quoted hereunder for better understanding: 4 62.-(1) Oral evidence must, in all cases whatever, be direct; that is to say- (a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. (b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it . (c) If it refers to a fact which could be perceived by a~y other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. (d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or, as the case may be, who holds it on those grounds: In o·ur case, it is clearly observed that the evidence of ten the .cell leader or chairperson of the· area where incident occurred was not necessary, was he present at the scene? The answer is negative;it should be known in advance that not in every case there will be a need of summoning a· leader of are·a within a locality where an offence has been committed and that each case has to be decided in its own merit. In ground 2, I am straight away of the considered op1n1on that the trial court properly addressed the appellant the way it was supposed to do pursuant to section of 231 of the Criminal Procedure Code, 5 231.-(1) at the close of the evid~nce in support of the charge, if it appears to ............. , the court shall again explain inclusive substance of the charge to the accused and inform him of his right, (a) To give evidence whether or not on oath or affirmation, on his own behalf; (b) To call witnesses in his defence; and shall then ask the accused person, or his advocate, if it is intended to exercise any of the above rights and shall record the answer. The court shall then call on the accused person to enter on his defence save where the accused person does not wish to exercise either of the above rights. When looked at the page 17 of the typed proceedings, my scrutiny reveals tha~ the statutory provisions were fully complied with, I have therefore failed to fault the trial court decision 1n this complaint, the appellant was asked whether he would give sworn or affirmed testimony and his reply was as follows, I quote: . "Accused option (sic) evidence under oath No witness to call no exhibit Defence hearing on 4 / 11/2013 Sgd" _The ground no.2 is consequently found helpless to the appellant's appeal. 6 = ·c·oming to the 1st , 3rd and 5 th , these grounds of appeal greatly are going to be determined jointly "if the prosecution sufficiently proved its charge", it is quite •J doubtful if so, firstly, the PF3 was not procedurally produced as required by section 240 (3) of CPA, the Repubiic conceded to the omission by the trial court, question to be -paused, who else could prove the extent of injury?fhough not always mandatory to have a medical practitioners enter appearance and testify to that effect as but areexceptionsto the general rule (see Bahati Makeja V. R Criminal Appeal no.118 of 2006 (unreported) =CA, depending on the nature and facts of a case but in our case a doctor who medically examined the victims was mandatorily to be summoned due to objection raised by the appellant (at page 11 & 15 of proceeding) Page 11 ~ 1st accused. I have an objection.may be she · get (sic) previously · 2 nd accused. "Sikubaliani nayo inawezekana kapata majeraha sehemu nyingine" Pagels. Accused."! was not the one who beats (sic) as the PF3 signed on 16/3/2012" Also (see the case of Emmanuel Wilson@ Bunga v,R Criminal appeal no.223 of 2012 qelivered by Court· of Appeal on16 May 2015 at Mwanza) which is, in my opinion, 7 : clistinguishable to the present case where there is a dispute of a date the PF3 filled, before the alleged date or after in that diversity (16/3/2012 or 16/8/2012). The above objections raised by the accused persons, to my considered view ought to have been considered by the learned trial magistrate as well as the prosecutor, the state attorney,by summoning the doctor who medically examined the _victims and · filled the PF3, firstly, to tell the court extent of injuries sustained by victims, secondly, when exactly the PF3 was _duly filled by him,as it is, a lot is left to be seriously desired. Regarding the offence of -sexual harassment allegedly committed by appellant and his co-accused person, the PF3 here was not necessary to prove this offence however it is legal requirement to ascertain if the evidence on record constitutes the offence of sexual har·assment c/s 138D (1) of the penaj. code which reads and I quote, 138D "(l) Any person who, with intention, assaults or by use of criminal force, sexually harasses another person, or by use of words or action_s causes sexual · annoyance or harassment to such other·_ person, commits an offence of sexual harassment ...... emphasis mine" · -My readings of the above quoted section of the law is that 0ne of the important element is intention to cause sexual harassment, in our instant matter the source of the fracas ,___J between the victims and accused persons was order of a fine given by the Primary court thereby caused exchanged of words and attack thereof, essentially the appellant's intention and his father to sexually harass to the PW 1, the · victim, is clearly established by cutting of the victim's cloth (colourful piece of kitenge -kitenge) "PWl~····Nilishtukia nasukumwa nakuangukia kwenye korongo na Mwita' he take (sic) stone and beat me ·at my head later his father arrive, Samson senso alinikanyaga kifuani akachukua kitenge change nakuanza kuchana complaining that he pay (sic)" 'PW3 .... nilimkuta anasidiria na skintight nguo zingine zimechomwa moto'. · In the light of the evidence (PW 1 's testimony) corroborated with that of P\1/3 the appellant is found impliedly intended to sexually harass the PW 1 as an intention to commit an offence is always by express but in great extent it is · impliedly inferred by an accused's act(s), it follows therefore the intention must be ascertained from various factors, the 9 ··appellant and 2 nd accused act (s) of tearing the pwl's cloth fappellants' action) thereby leaving her half naked amounted to sexual harassment. In respect of the contradictions complained by the appellant on a date of occurrence_ of the alleged incident, in the charge it is vividly stated that it was on 16/8/2012 as well as in the memorandum of the facts (see page 7 of the typed proceedings) when the offences in the charge against the accused persons were committed but the PWl, PW2, PW3 and PW4 told the _court that it was on 16/3/2012 at. about 16.00hrs moreover the PW4 as rightly in the appellant's complaint and evidence on record that he arrested the appellant on 8/8/2012 and he made interrogation onto him on 10/8/2012, Mr.Mamti submitted that it was purely a typing error bearing in mind that the contra_dictions did go to the root of the case, I do not think if the learned state attorney is right, it is legally unbelievaqle, the • contradictions as to . the date of occurrence of the material date in both in charge sheet, memorandum of fact sand testimonies of prosecution witnesses, question to be paused,is this the mere typing error? ··The appellant was not made aware of which event he stood . charged that allegedly decided by primary court which was testified to be a source of the matter at hand,for clarity I u wish to quote part of the proceedings. at page 10 " he pays tshs 600,000/= and make his family suffer from hunger · at page 11 "the source of this was fine ordered by Mkuyuni From the above quoted proceedings read together with the above noted contradictions as to date of occurrence, it is therefore not clear if the prosecution was prosecuting offences committed on or before 16/3/2012 and finally decided by the Mkuyuni primary court or 15 / 3 / 20 l2, or if that amounted to a pure typing error, I have carefully looked at both typed and hand written proceedings and found the same dates are in both proceedings, it my view therefore that error is not minor and a mere typing· error as contended by Mr.Mamti. The Trial court if analysed carefully and objectively the evidence on record ·could say something on that diversity of difference in of dates offences allegedly committed, on the charge sheet and that te~tified by the prosecution witnesses . . the appellant's complaint in this regard is ultimately founded meritorious. 11 l · - Another noted contradiction, is whether this case was - -initially lodged in Mkuyuni primary court? Due to what the PW4 testified in court that the apprehension of bias by 2 nd accused to presiding PCM made this matter to be V transferred to trial court (District Court) but on the other hand· when PWl cross examined by the 2 nd accused, she testified that the matter before primary ·court was concluded on 15/3/2012, thereafter such question, she wanted to produce Primary court's judgment but it was rejected on the ground that it was not listed during PH~ as among the prosecution exhibits. The contradictions undoubtedly apprehended, the prosecution and investigation are found were not serious, both during framing charge as well as at the trial , how all witnesses could tell the court different dates of commission of the offenc.es allegedly committed by the accused persons (from August 2012 as per charge to till March 2012 retrospectively)?. If it was by. errors by prosecution · witnesses or the trial court, would it be to that repeatedly extent?The answer is not, (see Robinson Mwaingise and another V. R (2003) TLR 218, 12 'Despite, the purported error on dates found in both on -evidence on record and that on the charge but the accused, when defending, addressed his mind on the material date to be on 16/3/2012 as· rightly adduced by prosecution witnesses. Before putting off my pen, I would like to address oneand a serious noted abnormality as to language used by trial court record, in both proceedings and judgment. The language of the· court for the record purposes 1s English however we used to make quotations with inverted or commas brackets (mabano) here and there in order to avoid sometimes distortion of intended meanings otherwise language should always be in English in subordinate. courts except primary courts however the learned trial Magistrate felt as not compelled to use English as depicted in both proceedings and judgment, below here below is part of the same and I quote:· "PWl. .. I move after several steps .. nilishtukia nasukumwa nakuanguka kwenye korongo na mwita ... alinikanyaga kifuani akachukua kitenge , change nakuanza kuchana complaining that he pays Tshs 600,000/=in court XX 2 nd accused.Sikubaliani nayo inawezekana kapata majeraha sehemu It nyingine .. )" ' I I I ) 13 . • ,The subordinate courts are governed by Magistrate Courts' Act, S.13.-( 1) The language of primary courts shall be Kiswahili. v (2) The language of courts· of a resident magistrate and of district courts shall be either English or Kiswahili, or as the magistrate holding such court may direct; save that in the exercise of appellate, revisional or confirmatory jurisdiction by a district court (in which case the record and judgment may be in English or Kiswahili), the record and judgment of the court. shall be in English. Though English is not our first language, but second or third as the . case may be, but requirement of. the law should be complied with accordingly. Bi-lingual record is legally not required( two languages) that is Swahili and English should not be at ago used in courts' proceedings or judgments as o bs~rved in this case except primary court· sand in Labour court (See R. 4 of the Labour Court Rules 2007), .Having observed as stated above, I therefore find the prosecution had not proved beyond reasonable doubt the offence of grievous harm c/ s.225 of the penal code unlike the offence of sexual harassment c/ s 138D ( 1) of the penal 14 i .... ~ode.Justice of this particular case does not require an . -order of retrial of the case but immediate release of the appellant forthwith as he must have completed serving the ~* imposed sentence of one year imprisonment unless withheld with a different lawful cause. ~l;j'. 3tJ/4/2tJJ5 Court: Parties shall be supplied with copies both judgment and· proceedings of this court of this court today if they so wish and without anycourt fees pursuant to c/ s 313 of CPA.