kasure makabe vs republic 2005 tzhc 154 22 august 2005

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 12 OF 2005 (Original Cr. Case No. 409 of 2002 of District Court of Musoma District at Musoma Before: L. MASOLWA Esq. District Magistrate) KASURE MAKABE............................................................... APPELLANT Versus THE REPUBLIC..................................................................RESPONDENT 3/8/2005 & 22/8/2005 JUDGMENT RWEYEMAMU. J : Kasure Makabe was charged with and convicted of causing grievous harm c/s 225 of the Penal Codel He was sentenced to 5 years imprisonment. Dissatisfied, he has appealed against conviction but not sentence. . The facts of the case were brief. Or| 25/1/2002 a fight broke out at a UWT party in the village of Matongd). The party was attended by many people including the complainant Pw1' Pw2 and Pw3, The fight involved a number of people. It was not clear what caused the brawl, but when Pw1 tried to separate the persons who were fighting, he was injured on the head and eye. As a consequence of injuries, received he lost the eye. l According to the prosecution's three witnesses; a story denied by the defense; the injury to Pw1 was inflicted by the appellant and his companions, namely Kasure Makabe, Mugusi Nyambachia, Amosi Mariribo and Masero; but it was the appellant, who was armed with a machete and club; who was identified as having injured Pw1. The place was lighted with a lamp and there was moonlight. The other culprits were not arrested or went in hiding so the trial proceeded against the appellant alone. In defense, the witnesses Dw1 and Dw2, admitted that there was indeed a brawl, but claimed it was a group of foreign individuals who inflicted injuries on the complainant as well as Dw2. The defense story was a bit inconsistent as Dw2 denied knowledge that Pw1 was injured, a rather obvious matter, in the circumstances of the case. The trial court found the prosecution witnesses credible, and disbelieved the defense. The reasons for such a conclusion were couched in the following words: I "On a very careful evaluation o f the whole e\}/dence and seeing a ll witnesses testifying before me have no doubt that the truth. He was h it by the accused by use o f a dub wh en assisted by other youths who have remained at large and the police have failed to catch them. I so say because he did see the accused from the day they were at the ceremony. He had gone to assist to separate a fight and was then attacked that way. There was the light from a lamp and m oonlight so the identify was quite correct before the victim had lost his eye" 2 "Having so observed I pronounce that the denial o f the accused not attacking the victim ; and his witness exhibiting a document dated 29/6/2002 and 30/6/2002 when the event was o f 25/1/2002 are effects to build a defense that didn't exist that way" The appellant has come to this court with substantially two complaints. One; that he was convicted on insufficient evidence of identification. Two; that "the conviction is not "legal" since the charge particulars were different from the evidence led at trial. The Republic which was represented on appeal by Mr. Kassim SA., supports conviction not the sentence. The SA argues that identification was watertight in view of the testimony of Pw1 & Pw2, who identified someone they knew before- a village mate; and which identification was facilitated by moonlight. The key questions for decision are; whether the appellant was properly identified; whether the charge was defective and three; whether the sentence was proper;. The trial court decision was based on; credibility of witnesses based on their demeanor; which the triali court is best placed to ! assess: favorable conditions of identification! of and the appellant who was not unknown to the witnesses - he was a village mate; and inconsistencies in the defense story- which entitle a trial court to draw negative inference on its credibility, jl have found no basis of i faulting the trial court's evaluation of pvidence and conclusion regarding the guilty of the appellant. ! 3 The issue of variance of the charge and evidence is misconceived. Pw1 like the other witnesses; testified to have been injured in Matongo village about 10.00 pm as per particulars on the charge sheet. As such there is no variance as submitted by the appellant. Regarding sentence, the SA submits that a deterrent sentence for a first offender was injudicious. I agree. When passing sentence, certain factors have to be taken into consideration, including among Others; " — the place which such crim inal conduct occupies in the scale o f seriousness o f the offence i.e. whether or not he is a first offender/' Masanche J, in Juma Mabembele v. R, HC Cr. Appeal 93/2004, Mwanza registry (unreported), following with approval the rule by the late Katiti J. in R v Magiligulaka Cr. Revision 13/1981, Mwanza registry (unreported). The appellant was a first offender; the crime does not seem to have been premeditated against the complainant, he was injured while separating those who were fighting; it occurred in the cause of a drinking spree. These circumstances do not justify a deterrent sentence. ' 1 In conclusion, I find the appeal against! conviction un merited and dismiss it. There was no appeal in respect! of the sentence, but in i light of my observation above, I use my reversionary powers to i reduce the sentence to such a term as will rjesult in the appellants' i immediate release unless otherwise lawfully h^ld. 4 Coram: Judgment delivered in the open Court at Mwanza on 22nd day of August 2005 in the absence of the appellant and in the presence of Mr. Kahangwa S/Attorney for Republic. B/Clerk Miss Judith S. Sgd: R. M. RWEYEMAMU JUDGE 22/8/2005 5