director of public prosecutions vs israel so kunenge and dito jocktan 2020 tzhc 4168 11 december 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO 68 OF 2020 THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS 1. ISRAEL s/o KUNENGE 1st RESPONDENT 2. DITO s/JOCKTAN 2nd RESPONDENT (Arising from the decision and orders of the district court of Bunda at Bunda, Hon. RugemaHia SRM, in criminal case no 134 of 2019 dated21.02.2020) JUDGEMENT 11th November & 4h December2020 GALEBA, J. In this case the Director of Public Prosecutions (the DPP) is challenging a decision of the district court sitting at Bunda in criminal case no 134 of 2019 in which the respondents, Israel Kunenge and Dito Jocktan were acquitted of two offences of malicious damage to property and assault causing actual bodily harm. The victim of the offences was Nyamuhangwa Malima a resident of Namalebe village located in Bunda District within Mara region, where the respondents are also residents according to the charge sheet. i According to the prosecution, it was alleged at the above mentioned village, on 25.01.2019 the respondents grazed cattle to the rice farm of the victim thereby destroying her crops and also that they assaulted her by kicking her on various parts of her body in the same farm. When that happened, the appellant preferred the above criminal case but the respondents were acquitted. The DPP was aggrieved hence the present appeal, in which he raised two grounds, first that the trial court did not properly consider the evidence of the prosecution and that the trial court erred by relying on minor discrepancies to acquit the respondents. To argue the appeal for the DPP was Mr. Isihaka Ibrahim learned state attorney and the respondents were represented by Mr. Emmanuel Paul Mng'arwe learned advocate. Submitting in supporting the 1st ground Mr. Ibrahim submitted that destruction of property was proved because, the victim Nyamuhangwa Malima testified on how she found her rice being destroyed by cattle which had been drove in the rice field by the respondents. This was also the evidence of PW2 called Elifas Bita. Because law requires that destruction of property must be both willful and unlawful, Mr. Ibrahim submitted that malice was established because, grazing cattle in one's rice 2 firm means an unlawful intention to destroy the property. He submitted that the evidence of PW1 did not need corroboration. In any event, he added that the evidence of PW2 and PW3 supported the evidence of the victim. On the 2nd count Mr. Ibrahim was of the firm view that the offence of assault was proved beyond reasonable doubt. He submitted that the fact that the charge states that both respondents assaulted the victim while PW2 mentioned only the 1st respondent as having assaulted the victim is a minor contradiction because PW1 mentioned both. The fact that PW2 did not mention both respondents as having attacked the victim is not a major contradiction. In reply to those points Mr. Mng'arwe submitted that destruction of crops was not proved within the meaning of section 326(1) of the Penal Code [Cap 16 RE 2019] because according to that section the destruction must be perpetrated by the accused, but in this case the evidence was the crops were destroyed by livestock. He submitted that if anything the victim was to file a civil case in order to recover loss of the crops. In respect of the 2nd count of assault Mr. Mng'arwe submitted that the offence was not proved because the victim testified in chief that she 3 was attacked by fists but during cross examination she testified that she was kicked whereas the charge sheet refers to kicking only. He submitted that there was also contradiction in the evidence of victim and that of PW2 because the latter stated that the victim fell down because she was hit by the legs whereas the victim stated that the fell down because of the attack by punches. In respect of the difference in names of the victim Mr. Mng'arwe stated that the contradiction in names of the victim was a fundamental matter going to the root of the case. According to the judgment of the trial district court, the charge was not proved because of two reasons in the main, first because the prosecution failed to prove that the destruction of the crops was both willful and unlawful and evidence to that effect was supposed to be corroborated. The other reason, it appears, is that the court was of the view that the discrepancy in the names of the victim that is Nyamuhangwa Malima in the charge sheet and Nyamwangwa Malima mentioned in the evidence was of critical importance. I will start with destruction of property. According to the evidence of PW1, Nyamuhangwa Malima, she found the cattle in her farm and the 4 ones who were grazing them were the two respondents. PW2 Elifas Bita at page 9 of the typed proceedings confirms that evidence. PW3 Peter Samson Nguno, an agricultural officer also stated that the rice field was destroyed by cattle. In this case PW1 and PW2 were eye witnesses. Their answers during cross examination in respect of the issue of grazing in the rice field, confirmed their testimony in chief. The defence of the DW1 Israel Kunenge was evasive, at one point he stated that he does not own the cattle that destroyed the crops, later that he was not there at the time the crops were being damaged and at some other point he stated that the alleged farm was his own property as he had won a case against another person called Erasto Mnubi and that there were no crops in the farm at the material time. Although this witness said that he was not at the farm, he does not say where he was. All was evasiveness. DW2 Dito Jocktan, denied participating in grazing cattle in the rice field, but he did it in a manner supporting the prosecution. That is so because he stated that the cattle that destroyed the crops were not of DW1 but they were Phares Kunenge's adding that on that day the person who was grazing the cattle was DW3 Lyatura Phares, who appeared to state that true the cattle were being grazed by him. Although DW2 said that he was at Namalebe 5 center, first, PW1 and PW2 saw him in the farm and he did not bring someone to testify that he or she saw him at the center. The evidence of DW3 Lyatura Phares is a quick fix weighing it against that of PW1 and PW2. Section 326(1) of the Penal Code [Cap 16 RE 2019] (the Penal Code) provides that; '326 (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, and except as otherwise provided in this section, is Hable to imprisonment for seven years/ The trial court held that it was not proved that grazing of the livestock in the farm was not shown whether it was willful and unlawful and Mr. Mng'arwe submitted that the rice farm was destroyed by the cattle and not the respondents. Both the trial and Mr. Mng'arwe are not supported not only by law but even common sense defeats their points of view. In Tanzania, rice is both staple food and commercial crop. Rice farms are privately owned fields and any trespass on them not even having to destroy them is illegal and unlawful. Rice farms are not grazing grounds or pastures for other villagers' livestock to feed. Unless the respondents were 6 claiming that they were blind at the time but it cannot be said that the trespass on Ms. Malima's rice field was not willful. The submission by Mr. Mng'arwe is not at all convincing. The law does not detail how the offender should destroy the crops. So it is immaterial if the offender uses cattle or the hands or any other item to ensure that crops are destroyed. In the trial court it was abundantly demonstrated that the Mr. Israel Kunenge and Mr. Dito Jocktan breached section 326(1) of the Penal Code in respect of the rice field of Nyamuhangwa Malima. The other offence was assault on the person of Nyamuhangwa Malima. The evidence of PW1 and PW2 was both that she was beaten and fell on the ground and she was kicked. The assault according to PW1 and PW2 was perpetrated by both respondents. The evidence of Israel Kunenge, was that when he retired from military service he swore not to commit any offence so he did not, assault the victim. Similarly, Dito Jocktan, stated that he did not participate in any offence in the charge. Mr. Mng'arwe was of the view that because PW1 and PW2 differed as to what assault made the victim to fall on the ground was of any assistance, but the point is that the woman was beaten. The details of how she fell and the kind of blow that made her fall down, is to demand too 7 much useless. The offence is assault, it is not the manner of how and which blow fell her down. So the arguments of Mr. Mng'arwe are unfortunate. Section 241 of the Penal Code provides that; '241 Any person who commits an assault occasioning actual bodily harm is guilty of an offence and Hable to imprisonment for five years.' According to the evidence of PW4 Albert Alwenje Mbuga a clinical officer at Masanga Health Center as supported by EXHIBIT P2, the PF3, Nyamuhangwa Malima following the assault which was inflicted on her by using a heavy blunt object she sustained multiple body pains on the left hip and traumatic swelling in the back. It is the holding of this court that this is what section 241 of the Penal Code punishes. The issue of the names Nyamuhangwa Malima in the charge sheet and Nyamwangwa Malima in the evidence is a minor matter. It was so minor that not any party had any issue with it. All parties and witnesses in the case knew each other and no confusion between the parties was raised as to the identity of the victim. If the court wanted clarification on such issues, it ought to have required parties to address it 8 before it could base its judgment on that aspect that parties were unaware of and did not complaint about. Based on the above findings, this appeal is allowed and the acquittal of the appellants in the district is nullified. In the same breath both Mr. Israel Kunenge and Mr. Dito Jocktan are HEREBY CONVICTED on both counts of malicious damage to property and assault causing bodily harm under the provisions of sections 326(1) and 241 of the Penal Code respectively and section 235 (1) of the Criminal Procedure Act [Cap 20 RE 2019]. \\ Z. N. Galeba JUDGE 04.12.2020 Court; after conviction which was part of the judgment the following transpired. PREVIOUS CONVICTIONS Mr. Ibrahim; We do not have any previous criminal records in respect of the respondents but I pray that a deserved punishment be imposed because the assault was imposed on the female victim. I pray also 9 that the victim be compensated under section 348(1) of the CPA for the victim's personal injury and for her crops. It is also true that the damages can be recovered by way of a civil suit. That is all. — <s~~zz- --- Z. N. Galeba JUDGE 11.12.2020 MITIGATION Mr. Emmanuel Paul Mng'arwe; Because, it is 1st time that my clients have been convicted and because Mr. Israel Kunenge is the retired military officer aged 67 years, it will be fair that he be punished with alternative punishment other than going to jail. The 2nd respondent is a form one student at Kitegule Secondary School. He is 19 years and when he was convicting the offence he was 18 years old. I pray that my clients be discharged. I pray also that damages should not be given in this case so that if the victim will desire to enforce it she can go to a civil court. Z. N. Galeba JUDGE 11.12.2020 io SENTENCE Having considered the above submission of the prosecution and mitigation, under the provisions of sections 339A (1) and 366 (1) (a) (i) both of the Criminal Procedure Act [Cap 20 RE 2019] this court makes the following orders; (1) The judgment of the trial court is quashed and set aside. (2) Both Mr. Israel Kunenge and Mr. Dito Jocktan are sentenced to three (3) years Community Service under the Community Service Act [Cap 291 RE 2002]. (3) The Probation Officers at Musoma are directed to conduct necessary social inquiry as to the suitability of the offenders to offer community service in line with the Community Service Act [Cap 291 RE 2002]. DATED at MUSOMA this 11th December 2020 11