20150518 TZHC Mwanza2

IN TME' HIGH COURT-OF TANZANIA IN _THE DISTRICT REGISTRY AT MWANZA HIGH COURT CRIMINAL APPEAL No. 133 OF 2014 .. (Originated from criminal case No 600 of 014 of Tarime District at Tarime) 1. NYIERERE SAGA.YA@ MARWA ....................... uAPl?EllANTS 2. C!HlACHIA NYAMAKOMU MARWA versus TH·E RE:PU.BLI:C,. •• ,f'l ■ fl'11 ■ ·1111,■■■ etne.ac.11.1111111•11•11111 ■ •11·11 ■■ 11 ■ 111111at1 ■ 11·m·1111111t:1111111 ■■ 1111 ■■ c ■ c:1:RES·PQND.fNT JUDGEMENT 29 th April - 18th May, 2015. J. A. DE-MELLO, J; The two appellants namely Nyerere ·s/o Sangaya @Marwa and <Chacha s/o Nyamakomu@Marwa were convicted and sentenced of one count . . that of 'Grievous harm c/ s 225 of the P-enal Code Cap. 16, Revised EdEtion 2002. A· two ·years term_ imprisonment was passed against them. The allegation by the Prosecution is that, on the 27t~ day of, Decemb~r, 2013 at about 6:30 am ·hours at Mrito vmage within the Distract of Tarime the two did jointly attempt to h~rm the victin:, one Mwera Mwita Kitemba by using a machete 'panga', theri icting deep cut wounds . over the victim head thus causi~g serious bodily harm. The matter was reported to Nyaingoto Police post in that same District of Tarime and secured treatment at Nyamongo Hospitan within Tarime, after securing · a 1Pf3 form. In an effort to discharge its duty .of proof beyond reasonable doubt at Trial~ · _ the prosecution summoned three witnesses_ to include Mwera Mwnta Kitumbe PW1, PW2 Esteria Opanga a clinical officer and, Marwa Mwita Katembe· as PW3. It was PW1's testimony that on that fateful ~ date of 27/12/2013 at about 6:00 am hours while.tending to his cattle he! . . 'I suddenly was invaded by the group of bandits, .about five of them andf inflicted cuts on his he~d using machetes. Being helpless, he ended up falling I down while raising alarm. In response, it was PW3 his neighbour who rushed to his rescue as he saw the assailants fleeing away. He did ·- manage to identify one of them being. A clinical officer PW2 was the one who attended PW1 ·~t:- hospital and based on PF3 which was· admitted marked Exhibit ?1, the ·one secured from the police. · In total denial the Defendants we convicted and sentenced serve two (2) years imprisonment. 2 ·" · Being_ aggrieved _they are now before this Court h_aving lodged seven (7) grounds of the appeal; A thorough perus_al and a kee:n eye has it that the grounds .revolve on . improper identification-·and burden of proof.· With no·representation the Appellants appeared in person while Angelina Nchalla, learned State Attorney repr~sented the Republic. Being limited in legal senses, the Appellants reiterated that this was a mere Implication outof a land dispute in the Ward Tribunal No. 14/2014 where the· 1st Appellant won. None of the two witnesses that is, PW1 & IPW3 saw them at the scene. Further allegations are that, even the c1rnical officer PW2 was bribed to report as she did in the PF3 form.. The defense had during Trial, two witnesses, Chacha Romara and Mwita Kibaclho whom the Trial Court disregarded. The entire evidence was highly contradictory for the Trial Court to rely upon. Angelina Nchal!a,. the learned State ·counsel vehemently opposed the Appeal _while strongly supported both conviction and sentence passed by the Trial Court. Based on visual direct eye evidence . of PW:ll and . in response thereto PW3 arrived instantly to ss the assailants fleeing the scene 3 · having accomplished their evil. act. Counsel further argued that both of the witnesses corroborated each other and no· contradictions were occasioned during their testimonies at Trial. She referred .the Court to pages 2, 4, &. 5 of the proc;eedings to · fortify her submissions. The whole episode of attacking, cutting, falling down and taken to hospital was alluded by both and was very systematic and consiustent she observed. With regard to · allegations of bribery of PW2 Counsel found it to be quite malicious and highly speculative. PW2, independent as she was had nothing to do to fabricate and implicate what she dealt with professionally. In. fact, she neither knew the victim nor the Appellants. Her· duty then was limited to that of tendering of the PF3 form which then the Court admitted and marked Pl exhibit. It was Counsel's prayer to sustain both the conviction and sentence, the Appeal being unmeritorious. In the brief rejoinder, the Appellants question why neighbours if at all, out of the alarm could not respond~ The prese!')ce of PW3 alone raised a lot of eyebro".Vs. Further that, if attacked by five: where are the rest they questioned: Identification in Criminal matters has been central and Courts have been cautioned to handle it with great care. While the duty lies with the prosecution without leaving any shadow of doubt, identification sets hi in recognition of 4 . . . . (- . th_e accused persons so as not to ·1ead to mistaken identity. In the case of .. ( James Kisabo@ Mirambo & Others vs. R, Criminal Aap[i)eai_ · No ".261/2006 CAT (Unreported) the Court.observed that; "even· most favorable ·conditions there ·is no guarantee against · . untruthfu~ e'¥'klle1111ce or mistaken identity." In his reasoning, the Trial Magistrate. considered at length the issue. of identification and based on evidence of PW1, PW3 this is what he observed:- "since PW1 and! PW3 have conclusive identified the accused pelisons at the scene of the crime, then their alibi is rejected. The question then is, did the Magistrate adequately deal with the testimony. sufficiently y enough to come to a conclusion that it is the two and these two alone, the Appellants who truly and sincerely harm the victim? Is it enough_ to say as he did without analyzin·g the evidence? I am hesitant to agree that the Trial Court did its job. well based on the two witnesses the Prosecut_ion relied upon. In the case of Mhembo INdah.ll vs. R, Cr minal Appeal No. 33 of 2005 (Unreported} it was observe 5 • 1 . . . "It is trite fail\! that evidence of visual identification is- -of. weakest lk~nd and the mos:t unreliable and should . . not be acted upon unless au possibmties of mistaken i_dentity are· eiimsnated and t~e Court .is satisfied that the evidence before it is absolutely watertight". Much as it was still early in.the morning, more had to be considered to avoid mistaken identity. The evidence before the Trial Court sound_ lacking and wanting, thus not water tight. The prosecution had left many unanswered questions to the benefit of the Appellants who also had their witnesses as record reveals that of DW2 lisaya Mwita and DW4 Chacha Marwa all alluding t~ be neighbours and not heard the alarm. True DW4 confirmed of the existence of ·a land dispute as seen on page 8 of the printed proceeding on which the 1st Appellant won at the Ward Tr-ibunal. VVou1d the Trial Magistrate direct himself to all these, he would have arrived in a different findin_g.· The· Prosecution's case did .not meet the standards set in proving its ·case and with such vacuums it is inappropriate to rely upon. For the reason~ stated abov~, I allow the Appeal as I order the release .both the Appellants,_ unless held lawfully for any other 6 . I. ( - . r \ ,_ . It is so ordered ·. Judge, 18/05/2Q.15. 7