20161125 TZHC Dar es Salaam

r IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 93 OF 2016 ( Originatingfrom District Court of Kilosa at KilosaT . Criminal Case No. 141/2015/ NG'UGQ,S/O SAID .......................... 1 5 T APPELLANT GODFREY S/0 LOGATI ................... 2No APPELLANT SHUKURU S/O LUOGA .................... 3Ro APPELLANT VERSUS REPUBLIC ............................................ RESPONDENT JUDGMENT Kitusi, J. Ng'ugo S/0 Said, Godfrey Legati and Shukuru Luoga, the first, second and third appellants respectively were charged and convicted on five counts under the Penal Code. They were sentenced to five years imprisonment in each, and in addition to the custodial sentence in respect of the fifth count, they were ordered to pay Shs. 300,000/= as fine. The first count was grievous has on contrary to Section 225 of the Penal Code. It was alleged that on 26/12/2014 the appellants assaulted 1 one Iddi TotaH by machetes and sticks and caused him to suffer grievous harm on his left arm. In the second and third counts the appellants. were charged with Assa ult Causing: bodily contrary to Section 241 of the Penal Code, it being alleged that on the same date time and place the appellants unlawfully assaulted Asha Mohamed and Jamill-ah Mohamed respectively by using a stick and caused them actual bodily harm. In the fourth count the appellants are charged with indecent assault contrary to Section 135 (1). of the Penal Code, allegedly for undressing Asha Mohamed with intent to cause sexual annoyance to her. In the last count the appellants were charged with indecent assault contrary to Section 135 of the Penal Code allegedly for undressing Jamillah Mohamed with intent to cause her sexual annoyance. All this is alleged to have taken place at Malangali area within Kilosa District in Morogoro Region. At the core of this case there is an apparent dispute over some land at Malangali area within Maudhui Estate. However for purposes of the criminal charges the evidence that was adduced at the trial was to the following effect. On 26/12/2014, Asha Mohamed (PWl), Jamilla Mohamed (PW2), Iddi Said (PW3), Masoud Mikidadi (PW4) and Salum Habib (PWS) were at the said Maudhui Estate planting paddy on a farm belonging to PW1. PW5 was 2 there on account of being the driver of a tractor that was being used in the task. As they were proceeding with their work, these five people saw a big group of people armed with machetes, sticks and iron bars approach them by motorcycles. It is their common story that this group than 50 people. The prosecution witnesses identified the first appellant as the leader of the group that went straight to the farming people and beat them up subjecting the women (PWl and PW2) to some graphic indicant assault. PWl and PW2 gave an account of how the first appellant undressed them and inserted his finger into the women's vagina and anis, doing so for fear of rapping his victims whom he suspected of being HIV infected. When the assailants were done with their victims they carried them to the office of the village council before proceeding to the police. PF 35 were issued to PWl, PW2 and PW3 which, during the trial, were admitted as exhibit Pl, P2 and PW3 respectively. Exhibits Pl respectively show that the doctor's opinion as to the nature of injury caused was "harm". It is exhibit P3 in respect of PW3 that shows the injury sustained to have been "grievous harm". The story for defence went like this; Godfrey Rogati (second appellant) owns the farm that PWl, PW2, PW3 and PW4 were working on by planting paddy on 26/12/2014. It is the very farm that PWl claims that it belonged to her. On 26/12/2014 the second appellant went to the farm only to find PW1, PW2, PW3 and PW4 working on it claiming that it belonged to PWl. He told the driver of the tractor to stop working. Then 3 the second appellant reported the matter to the second appeHant who was the Ward Executive Officer. A Land committee comprising of six members was sentto the farm. The alleged trespassers (PWl, PW2, PW3 and PW4) were put under arrest and sent to first appellant's office. According to the first appellant, there was an angry m-ob of people at the office who were all out to assault the alleged trespassers. He lost control and was helpless. because when he called the police for assistance he was informed that there were none to send for assistance. He had to ask the relatives of the alleged trespassers to render assistance and they managed to hand the victims of the assault over to the pol:ice. The first appellant maintained that he never went to. the Fann as. he was in· the office all the time until the victims were brought to him. He denied assaulting the victims and said when they were brought to him they were fully dressed. First appellant associated his being implicated with bad blood resulting from a land dispute between him and the victims' brother which was pending before the District Land Tribunal. The third appellant's defence was that on 26/12/2014 he was not within Kilosa District let alone at the scene of crime. He testified that he had traveled to Njombe to visit his parents. He traveled back to Kilosa on 1/1)2015 only to be informed of the alieged assault and that the first and second appellants had already been charged. He was joined in the charge. 4 The defence case was supported by Lucas Ngailo (DW4), Silvanus Mampombe (DWS} and Selemani Said Mapunda (DW6} DWS stated that he was in first appellant's office on the material day for he was a member of the Village Council. He was there when a report was lodged that there was. a fracas at the farm. He (DWS) and first appellant set off to go to the scene whereupon they ran into five motorcycles chasing the trespassers. OW 4 confirmed the fact that the second appellant had reported a case of trespass to his farm. DW4 confirmed the first appellant's story that he called for help. He (DW4) was among the people he called because he was the Executive Officer (WEO) of Tindiga, a neighboring ward. In convicting the appellants the learned Senior Resident Magistrate took the view that the ·assailants had properly been identified as the attack took place in broad daylight. She also relied on the PF3s to base a finding that the alleged assaults had taken place. She dismissed the defence as lacking in merits and attached no weight to third appellant's alibi because it was not substantiated by a bus ticket. At the hearing of the appeal the appellants stood in persons while the respondent Republic was represented by Mr. Katuri learned Senior State Attorney. It was Mr. Katuri who submitted first as the appellant elected to hear him before making their addresses. Mr. Kituri supported the appeal and had in essence three points up his sleeve. The first, a double-dyed sword was related to the PF3. He challenged the PF3 first for being admitted without its contents being read aver to the culprits (appellants), and secondly for violation of Section 240 5 (3) of the Criminal Procedure Act Cap. 20, (CPA). The latter provision requires that the court informs the accused of his right to have the doctor who completed the PF3 summoned in court. The second point relied upon by Mr. Katuri is evidential in nature, that the evidence for the prosecution was insufficient because PW3's evidence as to what happened to PW2 is different from what PW2 herself stated. Then it is submitted that the evidence is at variance with the charge sheet on material aspects. The third point is the delay in instituting the case from 26th December, 2014 when the incident occurred to 6th July, 2015 when the case was instituted. The learned Senior State Attorney was of the view that this delay in arresting and prosecuting the appellants had a ring of uncertainty as to what happened. The appellants, having heard the learned State Attorney had nothing to say except the first appellant who referred to the difference of dates between the charge sheet and the evidence. The appellants' appeal raised basically two issues one of the error in the PF3, which the learned Senior State Attorney addressed, and the insufficiency of the evidence, which was also addressed by the learned State Attorney. In disposing of this appeal I have to start by agreeing with Mr. Katuri that this court has powers and the duty to re-evaluate the evidence. I also agree with the learned Senior State Attorney that this principle was 6 pronounced in many decisions including the case he cited to me, the case of Thomas Mhina Verses Republic, Criminal Appeal· No. 151 of 2014, High Court of Kenya at Voi. But there are many decisions by this court and the Court of Appeal of Tanzania on the point. Suffice to cite the case of . - -Kasema Sindano- @ Mashuyi Versus The Republic, Criminal Appeal No. 214 of 2006, CA at Dodoma (unreported). I will deal with the issue of the evidence and the PF3 simultaneously. In doing so, I am mindful of the fact that it is possible to make a finding that the victims had been assaulted without basing that finding on the PF3. Therefore while I agree with the learned Senior State Attorney that the PF3s were wrongly admitted for not observing Section 24-0 (3) of the CPA and for not reading out the contents, I do not share with the learned Senior State Attorney that when the PF3s are expunged in this case there is nothing left to prove assault on the part of the victims. I am supported by the views of the Court of Appeal in the case of Hamisi Shaban @ Hamisi (Ustadhi) Vs. Republic, Criminal Appeal No of CA, at Mwanza (unreported). The Court of Appeal quoted with approval a Gambian Case of Batch Samba Fye Versus The State (SC Criminal Appeal No. 2 of 2010) ( unreported): 11 It is desirable to note that not all witnesses' evidence and number of exhibits tendered, on the evaluation of evidence .. . attract equal weight and orauen H- t·wn .... rr 7 I hold the view that the evidence for the prosecution that assault was committed is supported even by the defence witnesses themselves. For instance DWS stated that on arrival at the scene in the company of the first appellant he saw five motorcycles chasing the suspects of trespass. He further said that people still fight over land allocation. DW4 said he took part in ensuring that there was peace. In is my finding on the bas.is of the evidence available that the victims were manhandled and assaulted. What remains in dispute is who perpetrated the assault even if it be common assault. Although the incident took place in broad daylight the prosecution has not stated how the victims managed to single the three appellants out of over fifty angry people while being chased by over five motorcycles. It is at this stage that I think the court erred. It took the prosecution evidence wholesale without considering the defence the court made a passing reference to the defence and rejected the alibi for not being proved. Has the court directed itself to the fact that all what the defence needs to do is to raise reasonable doubts; it could have reached a conclusion other than what it arrived at. Therefore it is my judgment that the trial court did not address itself to the fact that the prosecution witnesses could not have singled out the appellants from a large group of an angry mob and while running, and that it did not consider the defence case properly. For those reasons, I allow the appeal, quash the conviction and order the immediate released of the appellants if they are not lawfully held for another cause. 25/11/2016 Coram Kitusi, J. For the Appellants Present Present· Present For the Respondent Ms Jackline Werema CC: Banza COURT: Judgment delivered in court this 25 th day of November, 2016. I.P.Kitusi JUDGE 25/11/2016 9