director of public prosecution vs samdamu kushuya laizer 2020 tzhc 4501 26 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOS HI CRIMINAL APPEAL NO. 50 OF 2018 (Originating from Criminal Case No. 316 of 2018 of the District Court of Moshi at Moshi) DIRECTOR OF PUBLIC PROSECUTION...................... APPELLANT VERSUS SAMDAMU KUSHUYA @ LAIZER................................ RESPONDENT JUDGMENT MUTUNGI .J. The respondent was arraigned in the District Court of Moshi at Moshi for the offence of Assault causing actual bodily harm contrary to section 241 of the Penal Code (Cap 16 R.E. 2002). The particulars are that on 19th day of June 2018 at Msikiti wa Riadha area within Moshi District in the Kilimanjaro Region, the respondent did unlawfully cut one Omari Mathias by using a bush knife (panga) on his left hand and caused him to suffer actual bodily harm. The respondent denied the i allegation forcing the prosecution to marshal four witnesses and tendered one exhibit to prove the offence. At the end of the contested trial, the respondent was found not guilty and acquitted. The appellant was dissatisfied and filed his notice of appeal and petition of appeal which comprised of one ground of appeal that: - - The trial Magistrate erred in law and fact when she made the findings that, the prosecution case was not proved beyond reasonable doubt. This appeal was ordered to proceed ex-parte against the respondent who was nowhere to be found even after the issuance of summon by substituted service vide the Mwananchi newspaper. The appellant was represented by Mr. Kibwanoh, Senior State Attorney who was granted leave to argue the appeal orally. In order to properly analyze and deliberate on the raised ground of appeal, it is of uttermost importance that one is enlightened as to what exactly did take place on the material day. It was the prosecution evidence that, PW1 (complainant) had on the fateful night tried to sleep in the mosque. It had been the tradition of the people to sleep in 2 the mosque when need did arise or had accommodation problems. As PW1 was about to sleep, it is when the respondent approached him and instructed him to go away. The reason of chasing him was that, they had to wait for the mosque secretary who had in fact refused people to sleep therein. The respondent became restless, he forcefully tried to push PW1 away, got out a “knife" and threatened to kill him by strangling his neck while in the process did cut PW1 's hand and caused him bodily injuries as exhibited by the PF3 (Pl) tendered by PW4. The Doctor (PW4) had observed in his examination that the injuries that were inflicted on PW1 were bruises caused by a blunt object. PW2 and PW3 did collaborate what PW1 testified only that PW2 saw a panga and PW3 (Police investigator) was told by PW1 that the respondent used a "rungu". In his defence the respondent admitted to have seen PW1 on the material day and time, who had come to sleep in the mosque where he was guarding. It is when the secretary who had received complaints that PW1 had alleged his laptop had been stolen therein directed that PW1 should no longer sleep there. PW1 refused to go away and as a result the mosque secretary PW2 had to go and get the Police. 3 Meanwhile the respondent remained with PW1 waiting for the arrival of the Police. This version of story was supported by DW3, the mosque attendant. As they waited a commission occurred where both the respondent and PW1 fell down. Upon the arrival of the Police and the secretary they were all taken to the Police station. Both DW2 and DW3 witnessed the respondent holding a ‘rungu” only. In the end, the trial Magistrate was convinced that, if at all the complainant had injuries, these were very minor and he could in such circumstances not have been cut with a “panga” but a blunt object. There was no trace of any blood seen by any of the prosecution witnesses nor did they see a “panga”. In view thereof, the trial Magistrate found the respondent not guilty and proceeded to acquit him. In support of the appeal, Mr. Kibwanah Senior State Attorney submitted that, it is not true that the prosecution did not prove the guilty of the respondent as required in criminal jurisprudence. PW1 had demonstrated how the respondent had cut him with a knife and later changed that, it was a “panga” and threatened to kill him. The learned Attorney further submitted that, the rest PW2, 4 PW3 and PW4 did cement the prosecution evidence that PW1 was wounded by the respondent in the process of attacking and threatening to kill him. The learned Attorney quickly called upon the court to find the discrepancy as to whether what was used was a "panga” or “knife” is immaterial. It was dark and in any event both are lethal instruments. It was wrong to acquit the respondent on such a minor omission. In the upshot, the learned Senior Attorney prayed the court does re-evaluate the evidence and proceed to set aside the acquittal and order for a proper sentence. Having summarized as above, the pertinent issue is whether the offence charged was proved by the appellant beyond reasonable doubt. Section 241 of the Penal Code provides: - “Any person who commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years.” In the case at hand as properly found by the trial Magistrate, there is no dispute that on the material night PW1 and the respondent did meet at the mosque. Further the respondent 5 did stop PW1 from sleeping therein. The question now is whether the respondent injured PW1 and caused bodily injuries by using a bush knife (panga). The court is moved to agree with the submission of the Senior State Attorney that there is a discrepancy as to whether the injury if any was caused by a “panga” knife or “rungu”. In the settled view of the Senior Attorney such discrepancy is immaterial, what matters is the actual act of PW1 getting injured. With due respect to the Senior Attorney, this was not a minor omission. For one to proceed to hold that PW1 did get injuries there must be established how, with what and by who was the complainant injured. In the case of Isidori Patrice vs. Republic, Criminal Appeal No. 224 of 2017 (unreported) it was stated: - “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." 6 In this case the respondent injuring the complainant with a bush knite (panga) was disclosed by the charge sheet, hence this was the message sent to the respondent when the charge was read over to him. PW1 and PW2 who were at the scene mentioned different instruments. PW4, the Doctor who examined him concluded it was a “blunt weapon” used which cannot be conclusively suggesting to be either a knife or panga or some other weapon. The respondent’s side had tried to shake the prosecution side, as all the witnesses were at the scene of crime and did not witness the respondent holding a knife or panga but a mere "rungu”. The respondent’s witnesses further revealed to the court that PW1 had grudges with the mosque officials and that is why they had ended up chasing him away and in the course a scuffled ensured. Considering that there were holes in the respondent’s case as to whether the appellant had a panga, knife or rungu, this shakes the appellant's case. Be it that he was injured but the source should be known to hold the respondent accountable. I am mindful as to the serious contradiction which go to the root of the matter as was held 7 in the case of Said Ally vs. Republic, Criminal Appeal No, 249 of 2008 that; "It is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution case will be dismantled.” Guided by the above authority, I am settled that the discrepancy of not knowing what exactly was used to injure the complainant, is fatal to the case and this was the gist of the prosecution case. The appellant should have been mindful of the legal duty it had in proving their case. I thus hold that, the appellant's appeal lacks merits and is accordingly dismissed. b. r.mutungi JUDGE 26/11/2020 Judgment read this day of 26/11/2020 in presence of Mr. Kassim Nassir (S.A) for the Appellant and in absence of the Respondent. 8 B. R. MUTUNGI JUDGE 26/11/2020 RIGHT OF APPEAL EXPLAINED. y---------- »• B. R. MUTUNGI JUDGE 26/11/2020 9