20180813 TZHC Mwanza

1''."'. . ,_ ~ / :I ·:/ ,. \, IN THE HIGH COURT OF TANZANIA AT-MWANZA n CRIMINAL APPEAL NO. 139 OF 2017 ctMc;c (Jcf=t'e/ '-··' [Appeal from the Judgment of the Distlict Court of Musoma in Criminal C?;se No. 56/2016/ Hon. R. B i'.Jaganga/ Senior Disl"lict Magistrate] VERSUS .. : RESPONDENT - The appella,. nga M"~· and Issa Ramadhan were arraigned i_D the Dist,€01t . _. . . ta and charged with the..offence of Grievous Harm - -· - coniirv to sectl~f:! 2:tsqf the Penal Code Cap 16, Revised Edition, .2002. At '•?~t/L_,, . ~: .the co'ii;ffl:~?:)Bl,itfthe trial, the trial magistrate found the appellants guilty, and_ convicted them. They were ·therefore, sentenced to serve seven (7) · years in prison and to pay a compensation of Tshs 500,000/= upon ~) ·;J'f4 completing the said sentence. Aggrieved, the appellants preferred this appeal which is against both conviction and sentence. 8riefly the facts leading to this matter Vvere that on 19th day of February, 1 2016 Kalega Steven (PVv'l) a resident of !<urugerege, Nyegina area within Musoma District in f\'iara Region, vvas assaulted in wi1iious pa(ts qf ;his body with a hoe1 panga and sticks while visiting his wife one,tQ~bora Harnls (PVV2) • !.;,~,t,1',:~ • : ,:_:.. '·\ ,:/4;-~,)~}~~~t~:.. .:.,_-,.r•:·.. · ~\: who was at the house of one Abel O,:~as!~{t~tfs,t~ll~~llft tfti~t, at about 20:00 · · -· · ~fi~'.=--··· · ·~t{~(/. .,~·:~Jl[•. · . . ------------- pm on the fateful day, upon affival ·a~the sai<£i house owned by .A.be! Orua iE~:g;,i:.a, . "'{!f~}j:, and where his wife was, P'v'/tJ::- ~? met witt) theta1me!!ants .~.t1.=;·lt,,, -. .. ·· · who appears to be his ,ii "i' •' r::'''::r ',,;:: :.M'• ··:~t~·-,. ~7,t_~~ an't~[lto l<now1~hy he was there. On replying that . J;~¼,b ·,:ffqJ"'fJN<'fZ.t;,1,fjJ$t' · he followed his,~wif~ the"'.:.,,: ppell'a'tft took a panga and a hoe while the 1st ,·tJr,!i5r ....- . 1i~f1t .. . . appellant ha·. _:,hug ick andritttey started to attack him with those weapons unr_)f · o • •·sciousness.--tt-is PWl's tesfrmony that despite the fact ll. ,~ .. · . thaftt.ti.l.~ inciden~,pccurred at night, he managed to identify the culprits, t·,;~t. ~lfff l~nit't~ them well and there was a bright moon light. According to PW2 having assaulted PW1 and seriously injured him, the 1 st appellant . wanted to burn down the house where PWl was in but he was prevented by people who responded the alarm. The incident was reported to Police station who visited the scene, took P'\-Vl to the hospital where he was attended by PW4. Investigation began and the appellants were arrested and charged as stated earlier on. The appellants presented a joint petition of appeal c:onta,:ntn g grounds as follows: - believed that the appellants grttJ,ltflii~lY /4~r:med one Kalega .'(:f\ .''~~Vf~f~\~!t\ ;-,:~~---·. ./ Steven while it was not-t/F!Jt case ¥J~- the'said Kalega Steven 2 ~~·:sf~. . .,~\:}i . •e:;~fl'.~(- was beaten by mob ,/.Q(jqs,tia§fvho - . traced hirn having escaped ':~·:;:--:-:---·-·-- ,._ ·, ;- /co l~1che bu.,che1c-, (.I .:;,i c-..:,, -:2;;" - ,··'. ·-,"~:: _.,,,:y-,- r-- 2, That the Tr!q{ cdt[p erretlirrl?:ifY JJ;~ in fact when It totally failed to cif~t&er ;~ .levaluatiz):he defense evidence that an :-;.,_/: ~;. :; ;, , ~--./'.\.~~:~t~t)::>· :·. . ·- ,.ised7J?'.' he_appe/lants when the window of their h ocked n by a heavy stone. ~.-Yi~E7:: .} 7 j{Jfffi- ,:, ne "fflal Magistrate erred in la.wand in fact when ·,·: .t,S. \t:~11i;r,_., · -- he co ·~tftetfi(t-he Z,d appellant who was a child aged 16 years_ -~G~;x . . i(:;,,old withf$vt makirig any findings as to his age. ,.<1;{\\~·-_. . dfri?4//; . 4. · tlltltlf-fie trial court erred in law and in fact by considering un corroborated evidence from the prosecution witness. 5. That the trial court erred in law and facts when it believed that PW2 who was living at the house of the appellants was the wife of PWl. 3 . 6. That the trial court erred in law and facts by determining the case in issues of facts contrary to the records. 7. That the trial court erred in law and facts by not taking into account the appellants mitigation. vVhen the appeal came before rne for hearing on 6th Awgust 2018, t-h o t...l I "-""' appellants were represented by respond2nt/P.epubHc enjoyed the service of fv1s. StJbira Myvanda;nbo, learned '.;. ;_~,~·, ?~f\~\. Senior State Attorney. On reading th~1~HtrgE! sh~~tvvJtb ~hich the appellants -------~·-~tt~r- __ · :"· ~--~i-. · \:-(:·;:;: }~.. - weie arraigned, it came to my !]llhd~ttopt th~:same rn;ight be defective b),;I . '• ,,_.,.. "' .-~-•-' containing insufficient partictifars. I tberefore directed parties to address the ,• ·; -:· ~":}fi~ ..-.. . _,. ','. court on whether t0t::: cha"~":· shi~t ~intained sufficient particulars are ~~~-· "i'}ti.J, . .. . ··-:""",;,J~:' required by seci~, · 132 ciftijh,l~ Cnm1fiffl';:;procedure Act Cap 20 Revised edition .t:~tI?fF;y,~Y_, ' , '~~l~- _:.f ~;~: on the J!Jh day of Februi!ry 2016 at Machare area within Musoma District in Mara Region did cause grievous harm to one KALENGA S/O STIVIN. 4 . . ' In her brief submission, Ms Subira hasted to concede that the particulars ...of the offence as indicated in the charge sheet, were insufficient for failure to d··,sclose how h'"' Q. . ppPllantc; \/iOIA/ r.f ,f--1--,,,.,e 0 _ t-=--it::: -·· rnmmitt.arl thP r.ffe=inn::. µrn,w:::nn::n· . _,__ - - • • • • • • • - ... - - ..._,,....., .._,,,"--''"'-'-• t ,..._,,YY'\.,.,V'---1/ in Jlf Vf\,_.VV VI (..J □ learned State Attorney, the defect was curable under section 388 of t~e Criminal Procedure Act Cap 20 Revised Edition of 2002* _Expectedly,. MJs ;;--·_ Subira's views were not shared by counsel Godwil! who c:}r,gued that such ca could be cured by section 388 (supra). Indeed, the particulars of thifbffence in th~fcl-:1 9rge sheet as indicated above""' ~r::< : · ::r:... ~'.t·?,"' did not state how the{itieva~§, ha/~ ;l~linf!icted to the said Kalega Stivin_ , -~,n-, -~':f,''· ~t~_::_ ~-'-'~-'\.,>'. _-, -;<••-: •. ·::,;; __ .! ·;;:., '<~:~v;<-, --:;,~7-,_~:~;~-- _.·!•;··:.- That as agreegt1~3/,1:~,,Q.oth p;~ttJes was ·an omission which renders the charg~ _;f1{i1~}'.'' __,_ '<11~1 <\y i . sheet with Wht~b th~Jftp_pellan~, ere convicted to be defective for containing _,t/\/:?:·, ·. 'l,;¥tt~t:?~t?;1t:i~~fri'.~' ,. . inst:t@de'nfp'~eyJ~ulijr_$ on how the-alleged offence was committed. While the-- ,-~;_.\:_~ -:~-;l•\, ' . ':'.i}<i charg~, is silent"1 ~s such, the Prosecutions testimony indicates- that PW1 '.',,::<{.,- ]~:( . ·--~/?};~/~:,, '.~ ~:,:\f> . injuries wer'62shstained because he was hit with a hoe and bush knife (Panga) in several parts of his body. In my considered view, since the charge didn't state how the alleged assault which grievously harmed PW1 was done, there was therefore contradictions between the testimony and the charge 5 sheet. In Laurent S/o Rajah Vs Republic, Criminal Appeal No. :270 of 2012 (unreported) the court of Appeal of Tanzania facing with a case where the charge sheet did not state in particulars of the offence that a s;hirt and a shoe were part of the iooted properties whereas PV'/1 testified that: he was looted Tshs 20;000/::::::, trousers 1 shirt and shoe, had thi?_to say: r.)iTJission is fatal t:is iike Al shitj; and shoes ."<'~ft,-. .' . mentioned by PW1 in his testim,On)';:;'.;w.,eri§'f?: , t listed in the --t- ;,i.. ·. . ;,~ffi'#:,~t}1lf,i ·. .. ··-•···> particulars of the offenG~~!:aft;:(the"kQ,ted items. It remains to be doubt;t.JjP/Jetlief_tt,ose"lfl:tfis not listed in the particulars of the were among theprpperties the appellant -t. :.'!:·-~;:~/.. ·-.-:'c;."~,-- hi35 alleged t -.. av',';Jootec:f rroi~,~-<;·P~111. For that reason, we agree with \'~> ~~;,{~;:J;tJat the said doubt~ were not resat · '17 case. ·Taki ~~~~1~at:' ·• ~,: .,~~,_above :1·. -~-:· -~·r~t;.. decisi0ft--and despite the fact that the omissioan . was riot~;tr raised biithe ·,1 . ~,ppellants, the defects in the charge sheet would haV"e ~~~{ suffice~\:t8\GJet,~ine this Appeal. However, there are some other thin~s worth consideration and for that reason, I allowed parties to submit on thee presented grounds of Appeal. In doing so, counsel Godwill Mweya was ver:1 brief and he started by abandoning the first ground and submitted on the ;: ~ ~ ; 6 remaining ones. In respect of the second ground of appeal, the learned counsel argued that the trial court failed to consider the defense case that the appellant's house window was broken, an alarm \Nas raised an~ the suspect was arrested. On the third ground of appeai, it vvas submitted that the trial court erred to convict the second appellant withqut making any findings as to his age and that it erred further by subjectit1g the sai,q<sec--<Jnd to the law of the Child Act. On the fourth ground, cou11.sel GodwilJ,5ubYnit;ted that the evidence tendet-ed _;{ ·, . ;;-:J~it>'J? .{?~:,,·. 1 by the prosecution J~~e ;~)J;~d to ,p;~*e -t~e charge as the same w-as , ·::!i.," "'-\_:f.'(\?':,:r:-:fd}i uncorroborateg.'-,:hie argiieiJi;;-Jhat'wnereas according to PW4, the injuri-es ,;~f( :,:",\;,*~; Y(ttj~,~" . . sustained by(~YY.1 w~l~t~ resu;,l~~bf being hit by a blunt weapon, PW3 said he ·. /ff,~ff~i~ ';;,~., ~tJ.$r; / 'X: ·;\;{tt~i~'.5&~;1 ~,c- " foungi,laJTI~frv~tt~jurer,L by a hoe and-PW2 said it was a bush knife. To thle <' ;'! '7%~;; ..?i},} learn~~:J. counsel{~yiew, these unrelated piece of evidence did not assist the ·.-f.itl:-;~·- x;.-..:-. prosec,~~3IilJs:fG~~~- It was further contended on the 5 th ground of Appeal that the trial court erred to believe that one Debora was the wife of PWl and so by believing that the said Debora was PWl 's wife the court reached a wrong decision. 7 .. With regard to the 6th and 7th grounds of appeal, counsel Godwill subrnitted ,· that the trial court mixed the names of PVV1 as it recorded hirn as Kaiega and Karega and it failed to consider the defence mitigation. conso!idating th2 third and fourth grounds in her subrnission ,n-'repiy. :She hastened to support the findings c(, the t(ial;~:Gqy,riwith the following t:wo :,:·:.'> \.:-·:._,. . <i•}Jtv:./_:" . . --· ... reservations. One that sent~~~~- 'J/~Jeven ;@~rs imposed against the first appellant was improper bedause " . the,said appellant was a child of 17 years· . .,~::;,., ,. --:.' .,. 'ril. • ., . .- oid and ought not to,J~1~fe b'"''"''- ntenc~:fJ'to a custodial sentence. Two; thlat :r;w',1;~0~l:~,:, - . 'i Y;_i:'.S' ::' to·s~ven (7) years imprisonment which was l;, ial magistrate being not a Senior Resident Ma~jr~~~:~~i~!:)l ·,~~,ave forwarded the file tcrthe High Court in terms of - · m ~. ~ . . sectiQJJ 170 (2) qf,Jhe. Criminal Procedure Act Cap 20 Revised Edition 2002. •~(·. .·: ···.:,. :· Xi:!? ,,_.;,,.._;,, Ms Subiimi;~:ftg.m~a;; this Court to rectify the errors. Regarding the complaint that the prosecution evidence was tainted with contradictions Ms. Subira submitted that there was no contradiction amongst 8 the prosecution witnesses. As such, she urged the Court to find tha'il: such complaint too, is baseless. As regards to the complaint that the trial court erred by beiieving that PVV1 and P\11/2 'Nere husband and wife, Ms :::;ubira stated! that did not affect the findings as the two witnessed the assault. On the complaint as to the names of the victim, the learned State Attorney argued that was an afterthought as the same oughtto haye beer\ ca,Js~d at the trial court. In her conclusion Ms Subira prayed thatJhe .,,,,,,.:,~_ 2 nd appellant be , ·.,:,,_:_ ~. t:. 1 ,~-, :;,c',r, Having summarized.ef.J'(su&ft,tsions fo)l~nd against the appeal as sue h, I '" " ", "}~· ~-t ";,':t-:- t• :: / ·i -·:-:.<'f!' 1 agreed with t · nsel'srwgcfbmissions that the second appellant being a chil , . .,,,"" enced to custodial term. I therefore allov-1ed the Fi ,. ;•·v~~;'.' _of the said--second appellant and immediately orde,.-ed for ffil/elease ff;@m custody. I so agreed with the counsels be~ause t:he ~;:~ .c<'-~ 1 availa~~, ~i1fttt':s,;~cords are very clear on the age of the said appellant. The second appellant was 17 years of age when charged which means he was; a child by the time the alleged offence was committed. Since there is now a specific statute in this country which carters for children, the trial cou rt therefore ought to have taken into consideration the rights of the chJld in conflicts with the law when passing its sentence. In particular section 1 :19 of the Law of the Child Act No. 21 of 2001 prohibits custodial sentences to children (except for hornicides offenses) where it states: 119 {l}A child shall not be sentenced to !rnprisoem.ent. (2) /11/here a child is conidcted ol. any •. /;ti[ence . ; :_ .·. :.:. .:-:_~}.'; punishable with irnprisonn,enl~ the cqu_rt rna½ in adcifti,o.r/or ·"·'.'· " _. .. ,,.- _ _·. ~~-.'J·p,--rr:::J/1·•,,:::J _J,Ji. .....,, i 1-......, _ vc . . iY'i ~,n,v·. r-l--r;,::.,1• ~d.,.., r:,,, .vli y ,y·Apr 1 U-, !Afn'.frh v~. "l,...... r'n":<'::,y c;11 z L, au~ unu..Je•r u c m,.;,,./e , 11~1; . 1 ·,,-, .J this Act ··- .~i~f ·_ -~:~:;\i: i,:~f,~l, _. . (a) discharge the cftJflet:rxfthoiJtJ:'(:µaking any order/ -.,.,, ·\:";f;f;/ ··r~:~?,. (b} order the c/J[ll:tto be tep;_iJlriatl3'fl;rat the expense of .. '-":_:-ii:'..~:.. "· , Governrnent to hi5· hon1e qt/district1of orig!n if it is vvithin •-tk:.'. ·.'f." ;· .. , '·,;; ( c) order the chi -~~~~:~t~-- ·~\?,j{i;~,- fit P. -''Yson 01/;tnstitulift; ,qmed in the order,. if the person or ",:j\': ffeCi,,il(('4f!t,~~ . ndertake such care. Since/~lt~ secon'~l;appellant was a child, and since the trial court did ri~t . ,~t,'.f~~t-. ..~:::!~;;' . adhere f5t:tliil1f~fiove requirements of the law when imposing its sentence_J the third ground of appeal has merits and that is the reason for my decisiora dated 6th August 2018 to allow the appeal in respect of the second appellant. 10 That done and said, I have thoroughly scrutinized the entire record of appeal. For reasons I am about to assign, I will begin with ground number two 1Which, in my view, if answered in affirmative, will dispose of the entire appeaai. The complaint under that ground is that the trial magistrate did not consider Jhe defense case. I hurry to agree with the appellants in respect of this aspect. To begin with, I think it is important to stress here tnat:1Us.e -~;.: law iS:r.ow seftied . - . that failure to consider defence case is fatal. A.s. QgrrnaH-'t,,.,$tated by this Court -'f- , _" . ··;*lri!. ~f - and the Court of Appeal, in composi!J.9 af,~lid~!f -~~ffg~s and Magistrates . \r. , . ~~~5~_-._"_•_-:_f;.=. ···--. -- .----~ --.-- . .-ii~/.'>~ . ' -- -. ·" are duty bound to weigh the evi_9e~nd~t0f botffsides. In the case of Yusa1ph -%~-:. -1r~ -Amani v. Republic, Criminal Appeal,:f'lo. 2-55 ~f 2014 CAT (unreported) the .::.,-;--r\l'·.,·,:,:,. ~ ·.. ,;-11'-- ~ ~., Court stated that:- "tt'it . ' ion of th'e:flaw that generally failure or rather Miat:>n of the evidence leads to wrong 'Suiting into miscarriage of Justice. In that :: ✓ ·_ .:,'; - ilure to consider defence evidence is fat:al and ,~ , ,, '!li{J/j;yJ~ll:iates the conviction. ' •""'l.:-~A_:(.~-{:;'.f"·~ In the present case, the learned magistrate summarized the evidence of botJl prosecution and defence. However, in evaluating the same he did not at all· 11 touch on the appellants' defence. His evaluation based entirely on what was stated by . the prosecution witnesses. As normally stated by the courts it is one thing to summarise the evidence for both sides separateiy and an other thing to subject the entire evidence to an objective evaluation. The Court of Appeal of Tanzania in the just quoted decision above, quot~<;! \Nith appwoval the decision in the case of Leonard MwanashokcfVtrR:e,p ubHc, Crirr1lnal Appeal No.226 of 2014(Unreported) whereby it was st<:3.ts.d that:,- : -,/i~f·:., ··<t?f~ . :_~t , .. _ . . ·•·· 'E~~,,it~~~f~;. • It is one thing to sum1J7arisettl1e evlii/ence for both sides separateiy and anot,/;Jer thing to su,pJ,ec,t tfie entire evidence ~-- For t~'.el, sake o~~{clarity, the appellants in the present case gave thefr . ¾,;j~t?~~~>> ,/;;: testimony onaer oath. It was expected therefore, as shown in the case above, their defence to have been properly weighed. That was not done. For instance, the 1st appellant stated that what was testifies by PW 1 were fies 12 and that's why his testimonies were not corroborated by any of the villagers. This is what he said at page 42 of the typed proceedings: - There was no body a,'71ong the villagers who came to corroborate PWl s evidence. Even his testimonie_$ were not truthful. Even PW2 said he was at our home by tl?,~n and ,'_':·.·· ·,•, ', PWl came to follow her at our home./ thai:/Was-not ·:;<, ). • ' . t,ue-". . ...·. <;~i%,._ ·:;,~fir:' . . st Again, at Page 43 of the same proceedi#f0s:J:'3~t 1 ;;i.tmpellqJ,t stated that: ;."t;>' "•",1ff,f!r,f:'fpj,;ti:--.i;..~----:: ":f ·. ---·-----~ ··-· {~- · . .-. . : 1\. -- - ~,.:4;: ".~\:)? PW1 invaded us on>J~h -02{~f{_16 -~~:fur home- I was arrested on 2t9th ._03-2016 aftef'5fa.-.month .... vve did not . ~.- . .::-... •'··;.:;1'· report the c~ti at ctf.,7tral poiicif;_ftation because_ PWl came . __ .;,_..~~:. ',, gJ: and asked t8'1Je.:f9rgiv~l!I.: -. ·..z:~.. ._. . };.> . _..... , '.~}·t·•:·. ·..., '~;¾~]~- : 1•,, er co red at all in the impugned Judgmerat. i}Jci,it~/1' c-' Readi.; t I . dgmeAt-of the learned Magistrate mere is no where h=e ;jf \ ·. "/!J/t.~ . . tou_c~!~ on anyt,J,ng raised by the appellants in their defense. In my vie'1-V \~l~7 .if? - that was~·ne~ta'#: Indeed, there was no response from the learned State Attorney on this ground when making her submissions in reply·. As I have shown above, the · 13 .. record is clear that their defence was never considered. The immeediate question is; what are the consequences for such crucial error by the le.arned trial magistrate. As it was stated in the. earlier on quoted case of Yu:suph . Amani v .. Republic (supra), failure to consider defense case is fatal and it vitiates the entire proceedings. Nevertheless, this being tt;1~. first appellate .. .·, " • ~ • "• • :·. A ,",~ •'\ • :•' court I am duty bound to re-evaluate and re-consider-the. appellaflts: 1efeence which was not considered by the trial court. Ipsa Jure, ,this •.fl-' is the-duty oF the ·. ··t;;:.... t7J; . . . ~~·j;;;,c. i ,,.. . :, ..~. .-_f::. first appellate court. I have a numbe[~pf'f~~(:isitlP~Afl?ffl!ncl~tncluding the case ~ - ------·- . ll:t"- it~ . ' .t(fiJ, ··-···-·. .. . . - . >t~. of Armand Gueh v. Republ~~, CNttlJnal ~peal No. 242 of 2010 CAT (Unreported) whereby the ~purt state_d: - ;"~ ~-.-:\, .. : tr·~-;~ •.·; :r. · '{ ·{~(iJJ,:•, ► . z~!t~\. ff!~-- , ~· A:•v.- -.-f,~)~/.1 '';£/ : . :. . ~,:ff' . :e;.gmbafM:@f:l. discussing the above referred doctrine ;;;'.,~')'f '1~ ,; . . nee ag~hvish to reaffirm our stand r/Jat we :cam l;f:~'!cf.l;tf ·,_~--~:.· 0iflile;;rguided, where circumstances may so ..;y.·" l>. 7~( dema \·~ · "~te principle that this being a first appellate ·r. ~~S,·.,_ ~-r-·· · f~J: court it1Jis a duty to reconsider and evaluate the ·evidence {,'\'/&IJ.tfifft/lflfl!J and come to its own conclusion bearing ir, mind -:....~,u:-.:.t·• that it never saw the witnesses as they testified. See the . cases of Audiface. Kibala v. Adili Elipenda & others, Civil Appeal No. 107 of 2012/ CA?; Tabora_ Registry and Maramo Slaa Hofu & others v. Republic, Criminal 14 Appeal No. 246 of 2011, CA?; Arusha Registry {both unreported). Guided by that authority1 I am now in a position to evaluate and con sider the entire evidence of both sides adduced in the trial court. While P'vVl said he was at the scene to follow his viife PVV2 \ivho,~ppedrs to ,,.• . :''· be the relative of the appellants and that he vva,'"s received by the said PW2 i.:,;· -":•)~·· and the appellants mother; the app~lla'nts/(tmt~~-Qlrn:Qn defended that rhey ---~-----·-···,-~-i?;lt·. :.:\: . : :·, '·? ":: •. ...... ... . - . . p;ii·;·:y',)4i\.,_ '.:1~>,·-. were invaded while asleep. Theit froust.vvindow,~ywas broken and they rai:Sed ,,,;;·2-;;~:;·Z;:::)j_,\•.• ~;-- an alarm for help. The fact~~f,fat fact the app~llants raised an alarm for h:-eip • -(~f>,._f:{f · ··.;:•tH. ·. . -:. . · .:,._ '.--~- ~. :<~; ·. ·, can be seen even i~.;le;~ect:1\''• n testim(?t,ies. While PW2 said the appellaS1ts .' .. •';;,)~.). ' ·-. . i,;;:f . g assa, ted P' ,-1:· PW3 said she heard an alarm for help o is appears to be the appellants mothaer :~Af:}~ :>\~Jri • menti€Yned·o ~ ~ . have received him in ttre-material night said she w..a.s - asleeij('!yVhen her ![ti)use· was invaded by the window being hit. This is contra ry 1~t> . ,/1:;-,·; . to wha~·~w)1~,s~la that among those who received him when he arrived at the appellant's compound was bW3. According to her, all inside the hou~e. raised an alarm for help and villagers responded and they managed to arrest PWl who was about to be killed by mob justice people but rescued and who 15 three days later came back to apologies to her. The village Executive Officer where the incidence of this case took place testified on the appellant's side tllat having been informed of the incidence, visited the scene and found a lot of people at the appellants compound and there were some persons inside who wanted to be krlled but he intervened. helo raised by the appellants on the fatenU:rrffght,anWithatJ{as a result of that . ---- - - - - ~:,_,J1r- -~:- -~, - -,:.:··,;1w''.~; .,- --- - - -- - a!arm many people including PV'✓-3 arid:iP'N4 responded. VVhile PvV3 said she witnessed the assault when:"tfle appel.,l~nts were attacking PW1 by a 'panga' ":..-c_} ; -'r.~'-f •>'-<: _-;. '-· ' jtj"'.~7;.. , ~>)~~ \·{/ ...;..._,h , and a big stick, DW4:,~~li~ hEftgµnd man~people at the scene and there were ,-g;t,s;.~;tk~~ ·,,r_ -:~\ }>'- ;· tt:r:~· people inside w,l;iQ;,}J.\lanteo~t be killed. In my view, I think PW3 testimonies ·!i~11f·/! -~i,,'.t , _~§~ - . were doubtfult~pd ,, , " ht not ,\<ihave been relied. -My belief is based on the -·:.:•/·i:;. ~/·:·. fa~\@~fi~iw~i~wh6~J1jso alleges-to have been-at the scene at the time or· fd ' - I'\~~' - ")-~'·" assauJ;" said thee,qppellants raised an alarm after assaulting PWJ. But PW3 ·<\ :,_,., ,., . :· ·:'.:.:-......:4,:.-._ , . who responded the alarm raised by the appellants themselves said he witnessed them doing the assault. This is a doubtful piece of evidence. There is also exhibit P2. These are statements from James Paulo which were tendered by PWS in terms of section 348 of the Law of Evidence Act Cap 6 Revised Edition 2002. Through exhibit P2, the court was informed by a person who witnessed the event (an eye witness) that PWl was attacked by three young men, This again brings doubt as both PVl/1, PVV2 and P\AJ3 said the -- as. sau'1t' _ _ w· - . as donP • · - on 1 • .t \/ hvJ tht:l / ._, hAJO ;:innolbnt-s hc;·oin ..... •'-" '"'" '--'r-'J-''-,,..,IIUI '- I 1'-I \...,II 1. In the final analysis, I am settled that the standard qf proof in crtrnioal cases indicates not only that the appellan~~ niar\~·geJJ:..tJi ~~Jse<·teasonable doubts : j~•'" .' . //. ,- ,;-,:t. . J}ift --- ------··- :, ....:··'-..~.\. \. ·,\//'{,,'.. . : on their involvement in the assault, but als0::,;;,the prosecutions testimony itself, created doubts whicijfbught '.:jt·-7 to havelbeen :·;: •..•...• -~' -:·.;; interpreted in favor of the appellants. Conseqi◄~y, f~~1~ ppellant$[' complaint in respect of the failure ~7- ._,,_?r\h~-· -·-:;iS~}~:::.;,_:_,. /"'_-:·_;_~:/ -., . by the trial cou onsicr;;:. he a~fe-'r1se case and evaluate the evidence has ave sa~ . arlier on that even the ·charge itself was . ~r;fiwt·~ insufficient-particulars. is no genuine reasons for me to deal with the remaining grounds ·of appeal as that will amount to an academic exercise. I thus find merits on this appeal and for the reasons above, I allow the appeal by quashing the appellants' conviction and set aside the sentence thereof. 17 .J .;··.•.; • Since I have already ordered the release of the second appellant, I will now proceed to order the immediate relea_se of the first appellant from prison unless otherwise held for any other lawfully cause. "<;. i~~ ;;p, .~.. . ... ~ ~'; . ~:: ff ~ ............. . •'~!;:'~.;~ .-... 18 l