kulongwa puli vs charles paul another 2018 tzhc 2043 4 december 2018

IN THE HIGH COURT OF TANZANIA SHINYANGA REGISTRY AT SHINYANGA APPELLATE JURISDICTION PC.CRIMINAL APPEAL NO 9 OF 2016 (Arising from Kishapu District Court Civil Appeal No. 10 o f 2016 and Original Criminal Case No. 88 o f 2015) KULONG'WA PULI.................................................... APPELLANT VERSUS CHARLES PAUL.................................................. 1st RESPONDENT EDWARD JOHN.................................................. 2nd RESPONDENT JUDGEMENT Date of last order: 11. 10. 2018 Date o fjudgment: 04. 12. 2018 EBRAHIM, J.: The respondents herein were arraigned at the Primary Court of Kishapu charged with the offence of assault causing bodily harm contrary to Section 241 of the Penal Code, Cap 16, RE 2002.According to the charge sheet presented in court, it was alleged that the respondents on 07.10.2015 assaulted the appellant. When the case was called for hearing, the appellant told the court on 06.10.2015 when he was about to be handled over his farm, the respondents appeared and started assaulting i him. The respondents were chased by the police and were arrested on 09.10.2015. Both witnesses of the appellant evidenced that the incident occurred on 08.10.2015. The respondents pleaded not guilty and registered their concern that they were arrested at their home stead on 09.10.2015 and tortured whilst they have not assaulted the appellant. The trial court found that the appellant failed to prove his case beyond reasonable doubt as the dates of the offence do not tally. The trial court also found doubt on the fact that it is not plausible there were 10 policemen and yet the respondents managed to commit such offence without being arrested. As a result they acquitted the respondents. The appellant was dissatisfied. He appealed at the District Court of Kishapu at Kishapu. The first appellate Magistrate after considering submission of the adverse parties concluded that the grounds of appeal have no merits as it was upon the prosecution to amend the charge sheet. He also found that the PF3 was not tendered by a competent person capable of explaining it. Aggrieved again, the appellant preferred this appeal. He raised three grounds of appeal. However going through those grounds, the appellant is faulting the trial court for not rectifying variation of dates on the charge sheet; and that it was wrong for the appellate magistrate to hold that it was important to summon a doctor who filled in PF3. At the hearing of the appeal, both parties appeared in person, unrepresented. The appellant adopted his grounds of appeal and told the court that there was enough evidence that he was assaulted. He said also that he had PF3. The 1st respondent prayed to adopt their reply to the petition of appeal. He challenged the allegation by the appellant and added that they did not assault him. He registered a concern as to how they could have assaulted him before the police and yet they were not arrested. He challenged the contradictions on the dates between the appellant and his witnesses. The 2nd respondent added that there was no exhibit and that there was contradiction on the dates. In rejoinder the appellant said that there were police. 3 This is a second appeal. As a general rule an appellate court should not disturb the concurrent findings of facts of the lower courts unless there has been a misapprehension of evidence, a miscarriage of justice or violation of some principles of law or practice. I cement my stance with the holding of the Court of Appealcase ofDickson Joseph Luyana and Another V Republic, Criminal Appeal No.l of 2005 (Unreported). The position of law in criminal case is clear that it is the duty of the prosecution to establish the guilt of the accused beyond reasonable doubt. (Section 3(2) (a) of the Evidence Act, CAP 6, R.E 2002).The position has been illustrated in the case of Boniface SiwingaV Republic, Criminal Appeal No. 421 of 2007 CAT (Unreported). The accused has therefore no duty to establish his innocence. All he has to do is raise a shadow of doubt to the evidence brought by prosecution. As such an accused ought not to be convicted on the weakness of hisdefence but on the strength of prosecution case. Coming to our instant case, I thoroughly went through the evidence on record, leaving aside the issue of PF3,1 observed that the charge sheet that was used to charge the respondents alleged that the incident occurred on 07.10.2015. No amendments by prosecution were recorded anywhere in the records of the court. The appellant himself when responding to cross examination questions, he said that he was assaulted on 06.10.2015. However both of his witnesses said that the assault occurred on 08.10.2015. The respondents defended themselves that they were not near the appellant on 08.10.2015 and were surprised to be arrested at their homes on 09.10.2015. This brings the question of inconsistence on the evidence of prosecution which is burdened with onus to prove beyond reasonable doubt. It is the position of the law that where there are inconsistences and contradictions on the testimonies of the witnesses, the court has a duty to address them and try to resolve them and decide whether they are minor or they go to the root of the matter. The said position was held in the case of Mohamed Said Matula V Republic (1995) TLR 3 (CA). In the present case this contradiction is major considering the issue as to whether the respondent really assaulted the appellant on the particular day or not. I am saying so because, it seems the appellant is not sure as to when he was assaulted and so was the prosecutor as it reflects on the charge sheet. The evidence of the appellant himself differs with the statement of the offence filed in court. 5 Another thing that brings doubt as also submitted by the respondents is the fact that there were 10 armed policemen during the ordeal and yet they could not stop the respondents from assaulting the appellants. I cannot fathom a scenario of 10 armed policemen failing to apprehend two men with sticks! Therefore considering the inconsistences on the evidence of the appellant and his witnesses and the charge sheet; and incomprehensible situation of 10 armed policemen failing to apprehend two men with sticks, I find that prosecution case has doubts. Those doubts as the law requires should benefit the accused. That being said, I find no reason to depart with the concurrent findings of the lowers courts. I therefore find that the appeal has no merits and I accordingly dismiss it in its entirety. Accordingly ordered. Shinyanga 04.12.2018 Date: 4/12/2018 Coram: Hon. S P. Mwaiseje, DR Appellant: Present in person 1st Respondent: Present in person 2nd Respondent: Present in person B/C: Fatma, RMA Court: Judgment delivered today 4th of December 2018, in chamber the presence of the appellant and both Respondents and Fatma RMA waij uty Reglstfai^ 04/ 12/2018