20010710 TZHC Dar es Salaam

' IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 70 OF 2000 (Original from Bagamoyo District Court Criminal Case No.281 of 1999) -~ THE DIRECTOR OF PUBLIC ) PROSECUTIONS ) . . . . . . . . . . . . . . . APPELLANT Versus SELEMANI RASHIDI ULILI ..................... RESPONDENT JUDGMENT CHIPETA,J.: The respondent, Selenumi slo Rasliidi Ulili, was charged before ' Bagamoyo District Court sitting at Clialinze with the offence of causing grievous hann contrary to section 225 of tlie Penal Code. After a full trial, I he was acquitted. The Director of Public Prosecutions was dissatisfied with I· the trial court's ver.dict; hence this appeal. The appellant raised only one ground of appeal, namely- " Tliat the learned trial magistrate erred in law and facts when lte acquitted the accused person despite tlie weight of evidence against him". rd The prosecution's evidence was to the following effect: on 3 Septeniber, 1999, at about 6.30 p.m., some misunderstanding arose between the complainant, Muhode slo Athanas (P. W.1) and the respondent. Thereupon the respondent went into his house and came out with wielding a ~ ,I •· ( , panga with which he cut P.W.1 on the head. As a result, P.W.1 sustained a cut-wound described by a doctor to be "dangerous harm". The respondent was then arre.sted. In his defence, the respondent testified the on the day in question, while he was at his home, one Ga11.de11.Si Atlta11.as (P. W.2) went to the respondent, who was apparently a cell leader, in the company of other i people and asked the respondent to be a witness to the sale of a bicycle. The I respondent refused because there was no receipt. Thereupon, P.W.1 hit the respondent with his head and the respondent fell down and was robbed. He then went to report to Police and later went to hospital. But he was surprised that he was made an accused person. Kole Selema11.i (D. W.2) testified that on the day in question, the respondent requested to be shown a receipt by P.W.2, and when no r_eceipt was produced, the respondent refused to be a witness. Then there was _an exchange of abusive language and P.W.1 and the respondent started fighting. Out of the four prosecution witnesses, two identified the offensive weapon-the panga, but the other two did not. They also differed on the type of handle of the panga. In his judgment, the lean1ed trial District Magistrate said that the charge of grievous harm had not been proved but that the lesser offence of assault Causing bodily harm had been proved. Surprisingly, the learned magistrate went on to acquit the respondent on the ground that there had been a discrepancy in the evidence of the prosecution witnesses as to the type of handle of the panga! There is ample authority for the propos1t1on that several witnesses giving account of quickly-moving events are liable to differ on minor details. It is for this reason that it is the broad points and not minor differences that should be considered in assessing the credibility of witnesses. In the instant case, the witnesses were at one that the respondent cut the complainant on the head with a panga. That was the material broad point. The nature of the handle was a trivial matter, and so any. discrepancies in its description by the witnesses was of no consequence. If 2 ' anything, it enhanced the credibility of the witnesses in that it suggested that their evidence had not been rehearsed or com1nitted to memory. From the judgment of the learned magistrate, it is quite apparent that he accepted the substantial truthfulness of the prosecution witnesses, for otherwise he would not have concluded that a charge of assault. causing actual bodily hann had been established. On my own view of the evidence, the evidence eloquently established that the respondent did cut the complainant with a panga. On the question whether tl1e injury amounted to grievous bodily harm, the P.F.3 clearly states that the respondent sustained "dangerous harm". That eloquently established that the hann occasioned was grievous bodily hann. For these reasons, it is as plain as day that the prosecution provecrithe case beyond reasonable doubt. I accordingly set aside the order of acqUittal of the respondent and substitute therefore a conviction of the appellant as charged. Appeal allowed accordingly. The record of the trial court shall be remitted to it and it is directed to pass sent c according to law. B.D. f/f;Jd(iUD PfTA JUDGE 10/7/2001 Coram: F.S.K. Mutungi-DR For the Appellant: Miss Mrema For the Respondent: Present in person CC: Edward Court: Judgment read this 10/7/2001 in court in the presence of Miss Mrema for the Republic and the Respondent Mr. Selemani Rashid U{ili in person. Read before F.S.K Mutungi-DR. 3 (Sgd): F.S.K. MUTUNGJ DISTRICT REGISTRAR 10/7/2001 Court: Upon :,, ·-· ti.r.:1!/reading out the subsequent judgment it is further · ordered that the Respondent Mr. Selemani Rashidi Ulili shall re1nain under Police Custody awaiting transfer to Bagamoyo in order for the District Court to comply to the High Court directive as contained in the subsequent judgment hereto. (Sgd): F.S.K. MUTUNGI DISTRICT REGISTRAti- l 0/7/2001 .. :; ' ;_ :-< .~. ' ·.~ 4