Judgement Criminal Appeal 9513 of 2024 Godfrey Adamu Rite Godii vs Republic

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CRIMINAL APPEAL NO. 9513 OF 2024 (Originating from Criminal Case No. 404 of 2022 in the District Court of Moshi at Moshi) GODFREY ADAMU RITE @ GODII……………………………… APPELLANT VERSUS REPUBLIC………………………….….…………….…………. RESPONDENT JUDGEMENT Date of Last Order: 10.06.2024 Date of Judgment: 08.07.2024 MONGELLA, J. In the district court of Moshi at Moshi (hereinafter, the trial court), the appellant herein was arraigned for the offence of grievous harm under Section 225 of the Penal Code [CAP 16 R.E 2022]. As depicted from the charge, the particulars of the offence are to the effect that: on 27.11 2022 at Njoro Mji Mwema area within the district of Moshi in Kilimanjaro region, the appellant cut one Wilbard Temu (hereinafter, the victim or PW1) on his fore head by using a bush knife thereby causing him to suffer grievous harm. The appellant denied the charge levelled against him. To prove the charge, the prosecution paraded three witnesses and tendered one exhibit. Page 1 of 13 The prosecution’s case was to the effect that: on the material day of 27.11.2022, while at his home, PW1 heard the appellant looking for his next-door neighbour, PW3. The appellant required PW3 to open the door so that one named Gift would return a purse/wallet he had taken. When PW3 got out of his room, the appellant began attacking her. Other neighbours, including PW2 and her husband also went outside to witness the commotion started by the appellant and his wife, while attempting to learn the reason behind it. PW1 decided to go outside to observe what was happening. He found the appellant attacking his neighbour and inquired on why he was doing so. The appellant instead cut him on the head with a bush knife. He was issued a PF3 and attended Mawenzi hospital for treatment. The appellant stood alone in his defence. He denied inflicting any injury on PW1 and implicated on one Zacharia, PW2’s husband as the one who did that. He stated that his wife’s phone was taken by one Gift and when his wife came to claim the same from PW3, PW3 came ought with a bush knife shouting insults at his wife and beating her. That, he inquired on why his wife was being beaten. PW1 then appeared at the scene to interfere and that was when Zacharia cut him with the bush knife and he also wanted to cut him at beat him on the back. He was then sent to the police. Page 2 of 13 The trial court found the charge proved. The appellant was convicted and sentenced to serve 7 years in prison. Aggrieved, the appellant has preferred this appeal on the following grounds: 1. That, the trial Magistrate grossly erred both in law and fact in finding and holding that, the appellant assaulted the victim (PW1) and caused grievous harm on him, but failed to note that, the appellant was not positively identified/recognized by PW1, PW2 and PW3 as the conditions and circumstances at the scene of the alleged offence were not conducive for proper, correct and unmistaken identification/ recognition. 2. That, the learned trial Magistrate grossly erred both in law and fact in convicting the appellant based on Exhibit P1 (the PF3) but failed to note that, the appellant was seriously prejudiced as he was not given his rights as stipulated under Section 240(3) of the C.P.A Cap 20 RE 2002 now R.E. 2022. 3. That, the learned trial Magistrate grossly erred both in law and fact in relying upon Exh P1 (The PF3) to hold that, PW1 was grievously harmed, despite the said Exh P1 being not read out aloud before the court after being admitted in evidence as exhibit. Hence the appellant's attention was not drawn to the contents of the said Exh P1 (The PF3). Page 3 of 13 4. That the learned trial Magistrate grossly erred both in law and fact in using weak, tenuous, incredible and wholly unreliable prosecution evidence from PW1, PW2 and PW3 as a basis of the appellant's conviction. 5. That, the learned trial magistrate grossly erred both in law and fact in convicting the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard. The appeal was argued by written submissions whereby the appellant was unrepresented, while the respondent was represented by Ms. Imelda Pelagi Mushi, learned state Attorney. Submitting on the 1st ground, the appellant challenged his identification at the crime scene. He alleged that the prosecution’s witnesses failed to furnish proof as to his identification at the crime scene. In his view, the conditions and circumstances at the crime scene were not conducive for proper, correct and unmistaken identification. In that respect, he faulted the trial court for failure to direct its mind in evaluating the entire evidence on whether the perpetrator was properly identified. In the circumstances, he had a conclusion that the trial court failed to eliminate all possibilities of mistaken identity prior to convicting him. Arguing further, he asserted that none of the witnesses mentioned the intensity of light that aided them in recognizing the perpetrator. In the premises, he had the stance that it could not be said with Page 4 of 13 certainty that the appellant was positively identified at such night hours. He insisted that the conditions were unfavourable for his recognition or identification. In support of his argument, he referred the case of John Jacob vs. Republic (Criminal Appeal 92 of 2009) [2011] TZCA 112 (23 November 2011) TANZLII. With respect to the 2nd ground, the appellant alleged a procedural irregularity on the part of the trial court in handling the PF3. He contended that the trial court did not accord him the opportunity to require the person who made the report to be summoned for cross examination, which was contrary to Section 240 (3) of the Criminal Procedure Act [Cap 20 R.E 2022]. Addressing the 3rd ground, he still challenged the wat the PF3 was handled in being admitted in evidence. He complained that the PF3, Exhibit P1 was never read before the court after being admitted as evidence. He found the omission contrary to legal procedures for admission of documents. Explaining how the procedural irregularity prejudiced him, he claimed that the omission caused him to fail to cross-examine the witnesses on the contents of the Exhibit. In the premises, he called for the Exhibit to be expunged from record. Concerning the 4th ground, he faulted the trial court’s conviction on the ground that it failed to note that the victim’s evidence and that of PW2 were loaded with material contradictions that rendered it weak, tenuous and wholly unreliable. Elaborating the alleged contradictions, he contended that while PW1 testified that Page 5 of 13 the appellant cut him on the head, PW2 testified that he was cut on his face. That, PW3, on the other hand, did not specify what body part was cut. The appellant had the view that if Exhibit P1 is expunged from record the remaining evidence particularly that of PW2 and PW3, who alleged to have witnessed the incident, shall be insufficient to prove the offence because of the discrepancies and short falls found in their evidence. He finalized his submission by praying that the court quashes the conviction, sets aside the sentence and set him at liberty. The appeal did not go unopposed. In reply to the 1st ground, Ms. Mushi was convinced that the appellant was properly identified at the crime scene. She found the prosecution evidence on identification of the appellant to be watertight. She argued so saying that the source of light was mentioned by PW1, PW2 and PW3 who were able to identify him. That, PW1 and PW3 disclosed that there was an electricity bulb fixed in the nearest distance and PW2 stated that the knew the appellant from before as he was his neighbour and saw him growing up. She further argued that since the source and intensity of light were disclosed and the witnesses knew the appellant prior to the incident, the appellant was properly identified. Referring to the case of Waziri Amani vs. Republic [1980] TLR 250, she contended that the possibilities of mistaken identity were eliminated. Page 6 of 13 Replying to the 2nd ground, Ms. Mushi appears to have conceded to the irregularity complained therein by the appellant. However, on the other hand, she challenged the appellant arguing that he failed to show how he was prejudiced by the court’s failure to inform him of his right to require the medical doctor that made the report to be summoned for cross examination. She claimed that the appellant was not prejudiced as he knew the nature of the charge he was facing and given a chance to make his defence. In her view, the omission to comply with Section 240(3) of the Criminal Procedure Act did not occasion miscarriage of justice to the appellant. She found the omission being curable under Section 388 of the Criminal Procedure Act. As to the 3rd ground, Ms. Mushi agreed that indeed Exhibit PE1 was not read before the court. She agreed with the appellant’s prayer for the same to be expunged from the record. She pointed out that it is settled law that the failure to read out a documentary exhibit denies an accused person the opportunity of knowing and understanding the contents of the document. On the other hand, however, she held the view that even if Exhibit P1 is expunged, the oral testimony of PW1, PW2 and PW3 sufficed to warrant the appellant’s conviction. This is because the conviction of the appellant was mostly based on the victim’s oral testimony. Seeking for the court to act upon the testimony of PW1, PW2 and PW3, she contended that every witness is entitled to credence unless there are good and cogent reasons for not Page 7 of 13 believing the witness. She cited the case of Goodluck Kyando vs. Republic [2006] TLR 363 to cement that argument. The learned state attorney further prayed that this court takes note that oral evidence, as provided under Section 62 of the Evidence Act [Cap 6 R.E 2022], is one of the methods of receiving evidence in court of law and is crucial in proving a particular fact. She argued that the court is entitled to rely on the oral evidence in reaching its conclusion. To bolster her argument, she referred the case of Abas Kondo Gede vs. Republic (Criminal Appeal No. 472 of 2017) [2020] TZCA 391 (12 August 2020) TANZLII. With respect to the 4th ground, Ms. Mushi opposed the arguments that the evidence from prosecution witnesses was discrepant or marred with contradictions. While appreciating the fact that contradictions by any particular witness or among witnesses cannot be avoided in any case, she contended that the discrepancies in the witnesses’ testimonies were minor, not affecting the credibility of the witnesses. To cement her argument, she referred the case of Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 TANZLII and Evarist Kachembeho and Another vs. Republic [1978] LRT 70. Addressing the issue further, she contended that the contradiction pertaining the body part on which the injury was inflicted was a minor discrepancy and the court should overlook minor contradictions and discrepancies that do not go to the root of the matter. As to PW3 not stating the injured part of PW1’s body, she Page 8 of 13 referred to the case of Dickson Elia Nsamba Shapwata (supra) as to the contradiction being minor due to errors of observation or ill memory caused by lapse of time. Addressing the last ground, Ms. Mushi was firm that the prosecution discharged its duty to prove the case beyond reasonable doubt. She alleged that all ingredients of the offence as provided under Section 225 of the Penal Code were proved beyond reasonable doubt. That. the prosecution proved that the victim sustained grievous harm, the harm was unlawfully inflicted and it was the appellant that inflicted such harm. She finalized her submissions by praying for the appeal to be dismissed. Upon considering the grounds of appeal, the rival submissions of both parties and the trial court record, I prefer to first address the 3rd ground of appeal. On this ground, the appellant faulted the trial court for relying on the PF3, Exhibit P1, while the same was never read out after being cleared in admission. In fact, Ms. Mushi did not deny this assertion, nor the fact that the implication is for this court to expunge the exhibit from the record. From the trial court record, I too find it apparent on page 8 and 9 of the typed proceedings that the PF3 was indeed tendered by PW1 and admitted as Exhibit P1, but after the same was admitted, it was never read out in court. It is well settled that upon admission of a documentary evidence, the same must be read in court. This position has been emphasized Page 9 of 13 by the Apex Court in its plethora of authorities. In Jumanne Mondelo vs. Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020) the Court stated: It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court. Failure to do so occasioned a serious error amounting to miscarriage of justice. See also, Joseph Mganga Mlezi & Another vs. Republic (Criminal Appeal 536 of 2015) [2019] TZCA 361 (4 November 2019); Lack s/o Kilingani vs. Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688 (29 July 2016) and; Robinson Mwanjisi and Three Others vs. Republic [2003] T.L.R 218. The essence of reading all documents is to afford the adverse party the opportunity to know and understand the contents of the document so that he or she could rightfully enter his or her defence. This was well stated by Court of Appeal in the case of William Maganga @ Charles vs. Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 (6 October 2023) TANZLII. “Reading all documentary exhibits to a person against whom they are sought to be relied upon, gives that person an ample opportunity to defend the case while acquainted with the full content of the entire prosecution case. This is an important part of the doctrine of fair trial.” See also, Geophrey Jonathan @ Kitomari vs. Republic (Criminal Appeal No. 237 of 2017) [2021] TZCA 17 (16 February 2021) TANZLII. Page 10 of 13 The effect of the omission to read out a document after its admission as an exhibit is a fatal irregularity whereby the effect is for the exhibit to be expunged. In William Maganga @ Charles vs. Republic (supra), the Court of Appeal stated: “According to law and to this Court's decision in Robinson Mwanjisi and Three Others v. R, [2003] T.L.R. 218 and many other decisions, the appropriate remedy to impose where a document is not read after its admission in evidence, is to discard or expunge it from the record, thereby rendering it evidentially worthless.” In the foregoing observation, I hereby expunge Exhibit P1 from the record of the trial court. The 2nd ground relates to failure by the trial court to read the appellant his right to request the medical examiner who filled the PF3 to be called for cross examination. This requirement is set under Section 240 (3) of the Criminal Procedure Act. However, since Exhibit P1 has been expunged, this ground automatically dissolves. To this point, the outstanding question I find pertinent to address, is whether the remaining evidence suffices to prove the case against the appellant beyond reasonable doubt. It should be recalled that the appellant herein was charged for grievous harm under Section 225 of the Penal Code, which provides: “Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years.” Page 11 of 13 The ingredients of the offence of grievous harm are according to the cited provision: causing of grievous harm, by a person and unlawfully. Grievous harm is defined under Section 5 of the Penal Code as: "Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;” In my considered view, in the absence of Exhibit P1, there are no clear details as to the extent of harm inflicted on PW1. I say so because none of the witnesses including the victim himself gave a detailed description of the alleged injury. PW1 stated that the appellant cut him on his head. He gave no other details except tendering the PF3. It was only in cross examination the appellant disclosed that he was examined at Mawenzi Hospital and stitched. PW2 stated that the appellant was injured on the face near his eye and it was a big cut. PW3 did not even elaborate the kind of injury inflicted on the appellant. In the premises, I find that such evidence from the prosecution witnesses does not suffice to prove that the appellant indeed suffered a grievous harm according to the definition offered under the Penal Code. There is no description fit to prove that the injury inflicted was rather a dangerous one. It was not enough for the witnesses to simply state that the injury suffered was inflicted by a machete/bush knife or that there was severe bleeding. They ought Page 12 of 13 to have elaborated the nature of the injury suffered and the form of treatment used. With the failure to prove whether PW1 suffered grievous harm, the most vital ingredient of the offence of grievous harm stands unproved. In the circumstances, I find that the prosecution failed to discharge its burden to prove the case beyond reasonable doubt. With this observation I find no relevance in addressing the remaining grounds of appeal. The appellant’s conviction and sentence are hereby quashed and set aside. He should be released from prison custody with immediate effect, unless held for some other lawful cause. Dated and delivered at Moshi on this 08th day of July, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 13 of 13