john lambikano vs republic 2021 tzhc 6694 25 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 30 OF 2021 (Arising from Criminal Case No. 235 of 2019 of Kasulu District Court Before I.E. Shuli, RM) JOHN S/O LAMBIKANO................................................................. APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT JUDGMENT 13th Sept. & 25th October, 2021 A. MATUMA J. The Appellant stood charged in the District Court of Kasulu District for Grievous harm contrary to section 225 of the Penal Code, Cap. 16 R.E. 2002. I He was alleged to have unlawful beaten one Agness d/o Ngumije (his daughter in Law (the wife of his nephew) on her head and left hand by using a stick thereby causing her to suffer grievous harm. The incident is alleged to have happened on the 22nd March, 2019 during morning hours at Muhunga Village within Kasulu District in Kigoma Region. At the closure of the prosecution case, the trial magistrate Hon. I.D. Batenzi ruled out that primafacie case was not established. He thus acquitted the appellant for having no case to answer. The Respondent appealed to this court against such ruling (DC Criminal Appeal No. 18 of 2020) whereas my learned brother Justice Ilvin Mugeta allowed the appeal on the ground that there was sufficient evidence on record to warrant the appellant/accused to have been required to enter his defence. > He thus set aside the acquittal and ordered the appellant/accused to enter his defence before another magistrate. It is from that Judgment of this Court, Hon. T.E. Shuli took over the proceedings, heard the defence case and composed the judgment which is the subject to this appeal. In her judgment the learned Magistrate found that the appellant was guilt of the offence, convicted him and sentenced him to suffer a custodial sentence of two years. The appellant became aggrieved hence this appeal with three grounds of appeal mainly complaining that the prosecution case was not proved beyond reasonable doubts, the prosecution evidence was fabricated against him due to existing grudges, and that his defence evidence was heavier which ought to have been givenjyeight against that of the prosecution. 2 At the hearing of this appeal, the appellant was present in person unrepresented and the Respondent was absent without any notice. The appeal was thus heard exparte. The appellant adopted his grounds of appeal and added that he did not commit the alleged offence nor that the victim was really assaulted on the alleged date because he was personally at Kigoma on the alleged crime date until when he was arrested on 26/3/2019. He further argued that even the victim who alleged to have been assaulted on the crime date when she was at the farm planting beans was seen in the church that day and at all times including the alleged time of the commission of the offence. She could not therefore be said to have been assaulted by him as alleged. Having gone through the records, the Petition of Appeal and the appellant's submission, I have no doubt that determination of this matter depends on the credibility of witnesses for both sides. This is because there is oral direct evidence from the witnesses of both sides. From the Prosecution case we have three eye witnesses to the crime. These are Agness Ngumije (PW1) who is the victim in this case, Agness Balanzize (PW2) and Naomi Daudi (PW3). 3 All these three witnesses testified during trial that on the crime date they were.in the farm planting beans. PW1 was the owner of the farm while PW2 and PW3 were there to assist her in planting the beans. While thereat came the appellant, who asked the victim (PW1) why was she continuing to cultivate into that farm while he had already forbidden her. He accused her for pretending to be deaf and started to assault her by beating her with a stick. They raised an alarm whereas the appellant fled away. They went to the Local leader and then she was taken to hospital where the victim's left hand was found broken. That is a direct oral evidence which if believed as being true, the conviction is inevitable. On the other hand, the appellant lamented that such evidence was fabricated against him as he had a land conflict with the victim and her husband over the farm. He argued that he was away to Kigoma to attend a sick person on the alleged crime date. He brought in his defence Anastazia John a church member, who testified that on the alleged crime date she was with the victim in church from morning hours at 08:00 hours up to 16:00 hours in the evening. This evidence tends to suggest that the evidence by the prosecution witnesses that the victim was in the farm that date, was assaulted by the appellant, takerxTerthe local leader and 4 then to hospital that date, was all lies as she spent the whole day in the church. If that evidence is believed then the acquittal is inevitable because it is as well an oral direct evidence. I will thus consider which side in this case seem to have more reliable evidence than the other. The guiding principle is that which was enunciated in the case of Goodluck Kyando versus Republic [2006] TLR 56Jthat every witness is entitled to credence and have his evidence accepted unless there are good and cogent reasons for not believing such witness. Apart from the three eye witnesses to the crime, the prosecution case got corroborated by three other independent witnesses whose credibility was not shaken. These are Songo Omari (PW4) who was the street chairman in the locality where the crime was allegedly committed. This witness had positive evidence to the effect that on the crime date in the morning hours, he was in his office attending his duties. Thereat PW1, PW2 and PW3 came to report the incident. He saw the victim's left hand bending. He took the victim to Police where they were given a PF3. He then took the victim to Kasulu District Hospital where they were told to go to Kabanga Hospital first to have an x-ray examination of the hand before further treatment. He took her to Kabanga Hospital where the X-ray was 5 done and returned the result to Kasulu District Hospital. This evidence contradicts that of the defence that the victim on the crime date was in church as averred by DW3. Not only that there is also an independent evidence for the prosecution that of PW6 Bwame Mkirya the clinical officer who attended the victim on 22/03/2019 at Kasulu District Hospital. This witness testified that the X-ray picture revealed that the bone of the left hand was broken. He also observed the victim with severe pains, swollen left hand, bruises and blood stains on the clothes. This witness tendered the victim's PF3 exhibit Pl to that effect. This evidence again negates that of the defence that the victim did not suffer any injury nor assaulted on the alleged crime date. Also, there is the evidence of PW5 Abdallah Lukokwa an old man who was at the shamba nearby the crime scene. He testified that he heard the alarm and followed it. He met the appellant rushing from the crime scene. He suspected him and told him that he has heard the alarm against him, if it is found that he had killed a person, he shall name him as he knew him. From the evidence of these witnesses I cannot seen how the same can be adjudged as being cooked or fabricated against the appellant. It does not sound that the victim would deliberately broke"her hand just to find 6 out a case against the appellant. But again, 1 have not seen any suggestive facts as to how could have the local leader and the clinical officer be involved in fabricating the case against the appellant. It is on the strength of such evidence I find that, it was the appellant's evidence which was fabricated to exonerate himself from the crime he had committed. The appellant's defence of alibi is extinguished by the strength of the prosecution evidence. After all, there is no witness who testified to have seen him in Kigoma on the crime date and time. DW2 Sofia Damas and DW3 Anastazia John both did not testify to have seen the Appellant in Kigoma on the alleged crime date and time. They both testified merely that the appellant told them that he was going to Kigoma. No one had positive evidence that the appellant did actually travel to Kigoma on the crime date. The defence evidence did not also state whether there was no possibility for the appellant to have committed the crime and rush to Kigoma in the circumstances of this case. DW4 Johari Mabruki stated in evidence that he met the appellant in Kigoma on 22/03/2019 but he did not state what was the time when they met and extinguish the possibility of the appellant to have committed the crime before travelling to Kigoma. Even though DW5 Zegeli Bilishanga who was nursing the alleged sick person contradicted him when he 7 testified that the appellant met him at Maweni hospital on 23/03/2019. If at all the appellant travelled from Kasulu early in the morning on the 22/03/2021 just for visiting the patient, what led him to stay the whole day in Kigoma without visiting such patient in the hospital until the next day. I thus reject the defence testimony as rightly rejected by the trial court. The prosecution evidence was strong enough to warrant the conviction of the appellant. It was an oral and direct evidence which is admissible under section 62 (1) of the Evidence Act, Cap.6 R.E. 2019. The same is believable and reliable. It is on that basis, I find this appeal to have been brought without any justifiable ground and dismiss it accordingly. Now it is the sentence. The trial court having convicted the appellant it sentenced him to suffer a jail term of two years. I asked the appellant whether the sentence was sufficient taking into consideration that it is on record that he is a habitual offender with several Criminal records on several convictions and sentences such as; Criminal Case No. 156/2019 (theft) and Criminal Case No. 72/1988 (malicious damage to property). He submitted that he appealed against all those cases and was acquitted. He did not however produce any judgment of the Higher court to establish that he was really acquitted on appeal. All the^udgment he shown me 8 were relating to other cases apart from the herein above named. He further complained of his old age (63 years old) and suffering from tuberculosis (TB). He did not however establish that he really suffers from such tuberculosis. I however refrain from enhancing the sentence because of the appellant's age. He is too old and even the charge sheet reflects that he was 61 years old in 2019. In the exercise of powers vested in me under section 366 (1) (b) of the Criminal Procedure Act, Cap. 20 R.E. 2019,1 find it in the interest of justice to reduce the sentence meted to the appellant because he is too old and physically he is looking weak. I thus reduce his sentence to that which would lead to his immediate release from custody. I therefore order that he be released from custody unless he is held for some other lawful cause. Serve for the alteration of the sentence, this appeal stands dismissed in its entirety. It is so ordered. Judge 25/10/2021 9 Court: < Judgment delivered in the presence of the appellant in person and Hapiness Mayunga learned State Attorney for the Respondent/Republic. Sgd: A. Matuma Judge 25/10/2021 10