magazi mdaki vs salum kazyoba 2023 tzhc 17290 15 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA PC. CRIMINAL APPEAL NO. 7 OF 2021 (Arising from Uyui District Court in Criminal Appeal No. 4/202, and originating from Criminal Case No. 29/2021 at Ilolangulu Primary Court) MAGAZI MDAKI................................................. APPELLANT VERSUS SALUM KAZYOBA........................................... RESPONDENT JUDGMENT Date of Last Order: 15/5/2023 Date of Judgment: 15/5/2023 MATUMA, J. The appellant instituted Criminal charges against the respondent at Ilolangulu Primary Court for an offence of assault causing actual bodily harm contrary to Section 241 of the Penal Code, Cap. 16 R.E. 2019. It was alleged that the respondent on 16/04/2020 at 19:00 hours at Magalang’ombe hamlet within Kagera village, Ibuli ward in Uyui District within Tabora Region assaulted the appellarrtudsing a stick thereby causing injury to the appellant’s left arm. 1 After a full trial, the trial court found that the appellant did not prove his case beyond reasonable doubts. It thus acquitted the respondent, the appellant was aggrieved with such acquittal. He unsuccessfully appealed to the District Court hence this appeal with three grounds whose major complaint is that; had the evidence on record been properly considered, the 1st appellate court could not have reached the decision that the case against the respondent was not proved beyond reasonable doubts. He thus prays for this court to quash the findings of both lower courts and find the respondent guilty and convict him accordingly. At the hearing of this appeal, the appellant appeared in person while the respondent was absent despite the fact that he was dully served by way of publication as it was ordered by this court on 27/02/2023. This appeal thus preceded ex-parte against him. Arguing in support of his complaints, the appellant submitted generally that the two lower courts erred in ruling out that he did not identify the respondent properly. He argued that he identified the respondent because he is a resident of a neighbouring village and the crime happened at 19:20 hours which was still early. He also argued that the respondent had the motive behind the crime for he had extramarital affairs with his wife. Having heard the submissions of the appellant for this appeal and gone through the records of the two lower courts, I find that this appeal has been brought without any sufficient caused 2 This being a criminal case and the offence being an assault causing actual bodily harm, the appellant ought to have proved among others, the identity of the respondent as the perpetrator of the crime. The two lower courts concurrently held that the respondent was not sufficiently identified to be the perpetrator of the crime. The issue is whether such concurrent findings by the two courts below are justifiable under the evidence on record. The appellant in his evidence against the respondent stated that sometime in April, 2020 he received a threatening message on his phone stating that; “kuna vijana nimewapa hela waje kukuchinja” He did not identify the one who sent him that message until when he was ambushed on the road and assaulted by the respondent and his friend one Luguta then he connected the dots to the threatening message sent earlier. According to the charge sheet, the offence was committed at 19:00 hours. The appellant in his submission explained that it was at 19:20 hours. According to the definition clause (section 5) of the Penal Code supra, such time when the offence was committed is night time. That being the case the factors for proving the identity of the accused at night time must have been well proved. One of such factor is the source of light and its intensity. 3 In the instant case, the appellant merely stated in evidence that on the material date when he was crossing the road he was ambushed by the respondent and one Luguta who was hiding. He then saw a hand and stick striking him; “nikauona mkono fimbo ikanipiga mkono wa kushoto nikaanguka chini. ” The appellant did not however explain the source of light and its intensity for his identification of the respondent at the crime scene. He was not even able to explain who among the respondent and Luguta was holding the stick he so alleged. In the case of Issa s/o Magara Versus Republic, Criminal Appeal No, 37 of 2005, the Court of Appeal held that in recognition cases where the evidence may be more reliable than identification of a stranger, clear evidence on the source of light and its intensity must be given. The court then stated the rationale behind of establishing the source of light and its intensity; “This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made. ” In this case, it is on record that the appellant suspected the respondent to have extra-marital affairs with his wife and that at one time he warned them to stop such habit. 4 Subsequently, thereof he received a “threatening message” as quoted supra. That was followed by an ambush on the material date at night hours. Under that circumstance, the appellant’s mind might have been prejudiced by the circumstances and figured out the respondent as his perpetrator. He might be honest but mistaken at the same time as it was held in the case of Festo Mawata Versus Republic, Criminal Appeal No. 299 of 2007. It is under that circumstances that the law dictates that proof of identity of the assailants must exhaust all the required factors to eliminate the possibility of mistaken identity. One of those factors which must be exhausted in evidence is the source of light and its intensity as stated supra. Since in this case the source of light and its intensity has not been established, the identification of the appellant against the respondent cannot be found to be watertight. I thus join hands with the two lower courts in their concurrent findings that the respondent was not sufficiently identified by the appellant on the night of the incident. But again, according to the evidence of the appellant, at the time he was assaulted, he raised an alarm for help. The first responders were Julius and Mkama. None of these two was summoned to give evidence as to whether at the crime scene, the appellant named the respondent as his assailant. Instead, the appellant brought Richard 5 Lukuba PW2 and Alfa Robert PW3 who are all local leaders and who attended him sometime later. Their respective evidences have nothing material to the identity of the respondent. It has been held in several cases that when the witness (victim) names the assailant(s) at the earliest opportunity it is an assurance of his credibility and reliability see; Marwa Wangiti Mwita and Another Versus Republic, (2002) TLR 39. In the instant matter, there is no evidence that the appellant named the respondent to those people who responded to the crime scene. According to the respondent’s evidence, he was at all times at his home and no one approached him on an accusation that he had assaulted the appellant. He left his home in July, 2020 going to cultivate tomatoes. There is no evidence on record that from the crime date 16/04/2019 up to July, 2019, the respondent was not at his home to be arrested. PW2 stated that he sent a militia to arrest the respondent but they did not find him. The alleged militia was however not summoned to give evidence on such alleged facts. The credibility and reliability of the appellant is thus damaged for having not established whether he named the respondent at the earliest possible time. The fact that the appellant had a PF3 establishing that he suffered some injuries as a result of the assaults, does not in itself suffice to establish the identity of the person who caused suchirrfufies. 6 I, therefore, find that this appeal has been brought without any sufficient cause. 7