civilian coin so deogratious kisandu vs republic 2023 tzhc 17063 27 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 37 OF 2022 (Originating from Criminal Case No. 57/2022 of the District Court of Kahama) CIVILIAN SIO COIN DEOGRATIOUS @ KISANDU APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 27h February & 27h April, 2023 A. MATUMA, l. The appellant Civilian sio Coin Deogratious @ Kisandu stood charged and convicted in the District Court of Kahama at Kahama for an offence of naming person a witch contrary to section 4 and 5 (1) of the Witchcraft Act, Cap 18 R.E. 2002. He was alleged that on 14th and 15th day of February, 2022 at Nyahanga area in Kahama District within Shinyanga Region with intent to cause injury or misfortune did name Raurencia eto Tundwe a witch. The victim in this case is the biological mother of the appellant. After a full trial, the trial court found the appellant guilty of the offence and sentenced him to a custodial sentence of seven years. Aggrieved with the conviction and sentence the appellant has preferred this appeal initially on six grounds and later added two other grounds of appeal. The grounds of appeal which are coached in / lilY person's manner carries the following substantive complaints' i. That the trial magistrate erred to put into consideration the criminal records of the appel/ant to sentence him to serve seven years imprisonment term while such criminal record was not an offence charged against him. ii. That there was no audio-visual or video clip to prove that he named the victim a witch hence the evidence adduced against him was a hearsay which is contrary to law. iii. That by being named a witch, the victim did not suffer any diseases/ injury or misfortune hence prosecution witnesses were false witnesses who lied against him. iv. That the defence of the appel/ant was ignored by the trial court. v. That the cautioned statement exhibit Pl was a torqed, document. vi. That the rank of the trial magistrate did not warrant her to sentence him to a custodial sentence of seven years. vii. That the trial magistrates misapplied the principle in the case of Peter Sanga v. The Republic, Criminal Appeal No. 91/2008 relating to the accused who pleaded guilty contrary to his case in which he pleaded not guilty. viii. That the trial magistrate misapprehended the evidence of the prosecution to his detriment. At the hearing of this appeal the appellant was present in person and did not have much to submit on the grounds of appeal. He adopted the grounds of appeal and pressed for his acquittal. The Respondent/Republic was absent witho any notice and this appeal was thus heard ex-parte. From all the grounds of appeal, I find that this appeal can justifiably be determined by answering two issues which covers all complaints in the grounds of appeal supra. The issues are; (a) Whether the prosecution case was proved to the required standard i.e beyond reasonable doubts to warrant the appellant's conviction by the trial court. (b) Whether the sentence of seven years imprisonment entered against the appellant after his conviction was legal. To start with the first issue, it is plainly true that the prosecution arraigned a total of five witnesses to prove the charge against the' appellant. PW1, Japhet John Kaliwa a street chairman testified on how he had tried several times to resolve the problems between the appellant and his mother the victim in this case to the extent that at one time the appellant wrote a letter to apologize and undertook not to repeat annoying his mother whom they lived in the same house. PW2 Lameck Colinel Kabolola is the brother of the appellant. He testified to the effect that on the 15/2/2022 while at home the appellant came and insulted his mother by calling her a witch. PW3 Simon Amir Njovu is the victim's son so the appellant's brother as well. He also testified to have heard the appellant naming their mother a witch. He explained that the background to the problem was that the appellant wanted to sale a bed but their mother refused. The appellant accused her to be a witch allegin at he wanted to be a 3 member of parliament but their mother has taken away his fortune (luck or fate). PW4 Laurencia Tundwe is the victim in this case and the mother of the appellant. She is too old aging 63 years. She testified that the appellant accused her to have bewitched him and caused him to lose being selected as a member of parliament; "You are a big witch; you have caused me not be selected as a member of parliament because you took my star (fortune)" She further testified that the appellant insulted her to possess snakes in her house and threatened to be killed by the appellant. PWS E. 9246 D/sgt Dickson was the investigator in this case. His evidence was to the effect that he recorded the cautioned statement of the appellant. He tendered the same in evidence as exhibit Pi after it was not objected by the appellant in his own clear words; "The cautioned statement is the same. I have no objection" Now in the cautioned statement the appellant is recorded to have stated; "Mimi nimekwishagombana na mama yangu mzazi zaidi ya mara tatu. Tarehe 15/02/2022 majira ya saa 10:00 kamili hapo nyumbani kwetu nilipishana kauli na mama yangu ndipo nilipomwambia kuwa ni mchawi, chanzo nilipotaka kuuza kitanda changu yeye alikataa ndipo mzozo ulipotokea. " In his defence the appellant apart from making legal submissions against the prosecution's case he general ~d to have named his mother "s witch': It is however apparent from the appellant's evidence that he was not in good term with his mother because his mother was treating him as a child while he is a grown up man. He wanted to divorce his wife but his mother sided with his wife by refusing him to divorce her; 1,/ have 42 years old and my mother is 68 years old. I am not a child therefore I have to live as a grown up person. My mother treat me as a child but I am not a child Therefore my mother is supposed to treat me as a grown person. the issue is not witch craft but the divorce I wanted to give my wife mother took her side. " It is from such evidence the trial court found that the prosecution evidence of PW2 and PW3 was direct evidence admissible under section 62 of the Evidence Act. The trial magistrate further considered the confession of the accused to PWS as evidenced in the cautioned statement exhibit P1. With all theses the trial court was satisfied that the prosecution case was proved beyond reasonable doubts against the appellant. The appellant is now before me challenging that finding of the trial court. I however take the position taken by the trial court that the prosecution evidence of every witness was direct evidence. PWl the local leader testified to have resolved several problems between the appellant and his mother and at one time the appellant confessed before him that he used to utter abusive language aqalnsthts mother and promised them that he won't repeat. But as e;esolved them, the appellant repeated. At last, the appellant's mother informed him that the appellant has insulted him; "Kuma lako mchawi wewe una manyoka" This evidence is corroborated by the victim herself PW4 and the appellant himself who admitted during his defence that he was in bad terms with her mother for she treats him as a child while he is a grown up man. PW2 and PW3 as well who are blood relatives to the appellant testified to have been present at the crime scene by the time the appellant was insulting the victim as a witch. The appellant did not suggest any bad blood with them as he did in respect of the victim PW4. Their respective evidence to the effect that the appellant insulted his mother as a witch thus goes unchallenged. Being oral direct evidence the same is admissible as rightly determined by the trial magistrate. In the absence of any suggestion from the appellant why should these witnesses be discredited; they are reliable and I find them to be credible in the same manner the trial magistrate did. The cautioned statement as quoted supra also shows that the appellant confessed to have named his mother a witch due to their misunderstandings. Such statement was admitted in evidence without objection by the appellant and in his defence he did not allege any torture, force or promise against such statement. He merely made legal submissions at that stage. Therefore, the trial magistrate properly considered exhibit Pi in finding the guilty of the appellant. Even if such exhibit would have been ignored, the oral evidence of PWi, PW ~and PW4 is in itself sufficient to warrant the conviction of t ppellant. I therefore conclude that the prosecution case was proved beyond reasonable doubts against the appellant and he was properly convicted. His grounds relating to evidence and conviction are therefore dismissed. Back to the sentence, the appellant is complaining that it was improper for the trial court to put into consideration his previous criminal records vide criminal case No. 178/2018 to sentence him to suffer seven years in jail while he served such previous sentence fully in that previous conviction. He served such sentence at Kitengule prison in the names of Deogratius Nalimi Kisandu. He further contended that the trial magistrate being of a rank of plain Resident Magistrate was not in law clothed with jurisdiction to pronounce a sentence of seven years. I agree with the appellant that in accordance to the law a Resident Magistrate is not allowed to pass a sentence of imprisonment which exceeds five years. That is the position under section 170 (1) (a) of the CPA. That section does not however apply to the Resident Magistrate who is senior i.e a Senior Resident Magistrate of any grade or rank. The same law however provides that the Resident Magistrate may pass any greater punishment than the prescribed one but such sentence shall be subject to confirmation by the High Court. Section 170 (3) of the CPA supra is however clear that when the charged offence has its prescribed sentence under the law, the subordinate court is clothed with jurisdiction to impose such sentence irrespective of the restrictions stated supra. In the instant case the Appellant was charged for contravening the provisi sof section 4 and 5 ( 1) of the Witch craft Act. In accordance to section 5 (1) of the Act supra seven years is a minimum sentence. It provides that a convict under that section shall be liable to imprisonment of not less than seven years. In that respect the Resident Magistrate was mandated in law to pronounce such minimum sentence. This ground against the sentence is thus devoid of any merit and is accordingly dismissed. With the hereby analysis and findings, this appeal has been brought without any sufficient cause. The same is hereb ~ismissed in its entirety. lained. 8