director of public prosecution vs joseph mbalayi 2017 tzhc 2066 4 august 2017

“ORIGINAL” IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 35 OF 2016 (Originating from the District Court of DODOMA Criminal Case No. 16 of 2014) THE DIRECTOR OF PUBLIC PROSECUTION............................................ APPELLANT VERSUS JOSEPH MBALAYI.................................... .. RESPONDENT JUDGEM ENT 04th AUGUST 2017. Mansoor, J: This appeal arise out of the judgment dated 22 January, 2016, passed by the District Court of Dodoma in Criminal Case No. 16 of 2014, by which, the Appellant was acquitted of the offence charged of Assault causing bodily harm c/s 241 of the Penal Code, Cap 16 R:E 2002. r 1 “ORIGINAL” The accused person in this case, Joseph Mbawayi was tried by the District Court of Dodoma on charges under Sections 241 of the Penal Code. The charge under Section 241 related to an assault with a knife or an axe to one Godwin Hoza, who has been examined as Pw. 1 at the trial. The learned Magistrate came to the conclusion that the ingredients necessary to establish the offence under Section 241 had not been made out. She found the accused not guilty for the assault on Pw. 1 and acquitted him. The Director of Public Prosecution was aggrieved by the acquittal; they filed an appeal to this court against the holding of the trial Court, saying that the prosecution was able to establish the ingredients of the offence through the three witnesses and specifically the evidence of PW1, the victim. PW1 stated that there was a fight between him and the Appellant over a bicycle, and a loan transaction between them. That the Appellant was holding P W Ts bicycle until his loan was repaid. PW1 states that he went to report the fight to police, and on his 2 “ORIGINAL” way back he met with the Appellant, and the Appellant had attacked him with an axe, and wounded him. PW2 is not an eye witness but he testified that he heard a shout for help, and he went out finding PW1 wounded. PW3 was the doctor, who testified that she attended PW1, and confirmed that PW1 was having a wound on his face and on the back side of his head. PW3 tendered PF3 in court which was admitted as Exhibit P I . The State Attorney stated that PW1 was able to identify the Appellant since there was enough light, and since they knew each other before the incident as they had a fight, and that they were in a loan transaction. That the Appellant and PW1 live in the same village. The State Attorney also submitted that the evidence of DW1 who is the relative of the Appellant should not be taken into consideration, since these two are relatives. The case is really a very simple case. There was proof that there was a fight between PW1 and the Appellant in the “ORIGINAL” presence of DW1. PW1 left to report the incident to police. Neither the charge sheet nor prosecution witnesses had stated the time at which the crime was committed. The charge sheet reads as follows: Statement of offence Assault causing actual bodily harm contrary to section 241 of the Penal Code Cap 168 R.E 2002. Particulars of offence Joseph Mbawayi on the 22nd day of September, 2014 at Bwigili Village within Chamwino District of Dodoma Region did assault Godwin Hoza by using sword by causing him a wound near left side to the neck with length 5cm and depth 2 cm. The charge is defective. First the Penal Code is not Cap 168 of the R: E 2002, and the time of the commission of the offence was not mentioned. In the case of Mussa Mwaikunda vs. R (2006) TLR page 387, and also the case of Isidori Patrice vs. 4 “ORIGINAL” R, Criminal Appeal No. 224 of 2007 Court of Appeal sitting at Arusha, at page 11 of the Isidori case, the Justices of the Court of Appeal observed the following: "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of the offence charged : See section 132 of the Act. It is now trite law that the particulars of the charge shall disclose the essential elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence charged with the necessary mens rea. 5 “ORIGINAL” Accordingly, the particulars, in order to give the accused a fair trial in enabling him to prepare his defense, must allege the essential facts of the offence and any intent specifically required by law. We take it as settled law also that where the definition of the offence charged specifies factual circumstances without which the offence cannot be committed; they must be included in the particulars of the offence. In a charge under section 132 (1) and [2), therefore, the factual circumstances which of necessity must be stated in the charge are those specified in paragraphs (a), (b), (c) and (d) of sub-section (2), in addition to the mentioned specific intention to procure sexual intercourse". It was important that the charge sheet should have indicated the time within which the otfence was alleged to “ORIGINAL” have been committed. Since the time was not mentioned, and if the offence was committed at night, the prosecutions were supposed to prove that it was actually the Appellant that had attacked PW1 and slashed him with an axe. The fact that there was a fight between them before the crime doesn’t prove that it was the appellant that had committed the offence. In the present case, it is plainly clear that, the particulars of the charge did not disclose the essential ingredients of the offence and the Appellant did not know the nature of the case facing him as the ingredients of the offence were not adequately disclosed to him on the charge sheet. It is trite law and as stated in the above cited cases that the particulars of the offence must be clear and must contain all the essential ingredients of the offence. As held in the Mwaikunda’s case (supra), the charge which did not disclose the offence is defective and cannot be cured under Section 388 of the Criminal Procedure Act, Cap 20 R.E 2002. “ORIGINAL” PW3 established the stab. That the stab on Pw 1 was on the face and at the back of his head, and, as the medical evidence shows, the cut was 5cm long and 2 cm deep. Apart from the victim, Pw. 1, no one else had seen the Appellant attacking PW1. PW1 's evidence was actually not corroborated. On the evidence, and on the very statement of the victim PW1, there can be no doubt that the Pw.l was stabbed and had an injury but there is nothing whatsoever in the evidence that gives the least support to that offence that it was the Appellant that had stabbed PW1. Based on the above, the appeal lacks merits, and it is hereby dismissed. The holding of the District Court is hereby confirmed. JUDGE 04th AUGUST 2017 8 “ORIGINAL” Judgement delivered in Court today in the presence of the Appellant, Ms. Magiri, State Attorney for the Respondent Republic and Mr C.A. Chali the Court Clerk. L. MANSOOR ■V '! JUDGE 04™ AUGUST 2017 9