20170519 TZHC Dodoma

' i

IN THE HIGH COURT OF TANZANIA

AT DODOMA {APPELLATE JURISDICTION) DC. CRIMINAL APPEAL NO 16 OF 2017 (Original Criminal Case No. 122 of 2016 of the District Court of Kondoa at Kondoa) KIDUNDA JUMA@ MGORO .............. ;: ............................. APPELLANT

VERSUS

JUDGMENT 29/3/2017 & 19/5/2017 A. MOHAMED, J: The brief facts leading to this appeal are as follow. Kidunda Juma, the appellant and his two colleagues, village militiamen, were instructed by the Chubi Village · Executive Officer to arrest the complainant Haji Maulid Kimolo (PWl) for his refusal to present himselfathis. office.-o.f-terbeing so summonect When cor1fr0Rted, cin- ···-······.. -· ....... _ ............ --- .......... ~~~-..................................... . . . ..................... ··-· - ··• . . -~.~ ~ ·-. -· .. ---... ' ..... --- . . . . . :°:te.:x.~0:a:O@~@:.:@l.,WfI&c!:s:i0:rtcttit:stu.ff.Ee:}e:i::fsf:J'.@ti2Ftdt~wn1cl::1:,tl\~/6::CS1:ripfE:tlnar:ft;:. . . - ~. ..... ._. ,. : .'. ' . alleged he was grievou~ly_!.njl![~~.~on the h..:.~s:!9 ..Q.Y.!.0.~__rnnltL9_r:DeQ:_ His ...... ·- -···----·------· --· -··- ::' -.·•~•···:·~",~~~:··~~,.,~p)'.r:~:et:i&i:e:121e&~ Ele>¾el8:::"7db'fi'=~-a=rrer~;pfrs,f@J~5'::1ffe7\;;~xci5:' ·a flhM-:'ftsFefHF"~cn"' Yi-Te:• ···· ·. . . -~~ :~~: __~: :::~ 4 i;'.:~t~lfB:~~~~~®:iite~t~t~~~~i~;rtr,s,:~t~1::i:'tt¥r~::q;r~ij~jt0Jir::fu;r(;Ei§1.i3{f~ij1~}~:~itfi5'}[1ij~'i~;.~:t·~"'::'''~';t~"·:::t'! •• -,., ; ,· ••, • -~- .... ,: ;·, ·.;. •• ' ~ J, ' , - ,. • •• ~ _ •• " ••• j - ' -.,. • • • ' size- and ·e-xte-nt ·ot · the· . net1cl ~in]ury--w.cas· arawn ·5y ·a- --aoctor. The 1 appellant was convicted of causing grievous harm contrary to section 225 of the Penal Code [Cap 16 RE 2002] by the trial court and sentenced to 3 years imprisonment. His two colleagues were acquitted. Against that decision he now appeals on · the following 4 grounds. l. That the trial court erred in convicting him on based on the complainant's weak evidence.

2. That the trial court erred as the case was heard by two magistrates without assigning reason.

3. That the trial court erred in failing to consider his evidence.

4. That the case was not proved beyond reasonable doubt. At the hearing, the unrepresented appellant chose to rely on the grounds in his petition of appeal in support. thereof. The Republic had the services of Ms. Mwakyusa, learned S-tate Attorney who - . . --·- -· --- ·-· ... In resisting the l st ground, the counsel rnaintained the prosecution wfff1esses proved the case agait-ist the···cTppellant. She --·-----·-------- - . . -- - - ··- ·-. . '··-· ._ ,• . . .__ . . 9f~~·~?~~~,~~4t:~9~~_, ·~~~s3..ii9J''q~~,fit~r",1~$1m~,Q:~ Ih~~~q~~.,,£ll~r.~: tft~,~f~rt~,;~J~*· ._. __ ..... . . . .. . PW]-· theFcom'iJlainonlnfter hfs+read\ivound-had, been stitched; The-- ··.·· ~~-~,~~~;~YWi~IB~~~'.:Jf~~1~@~m1n1-0~1['c'- · · · centimeters in length. However, Ms. 1\t\wakyusa admitted that it was 2 . ' impossible for this doctor to certify that the said wound vvas a half centimeter deep when it had already been stitched up by another doctor. She was of the view it was only possible for him to see the visible length of 8 centimeters. Nonetheless, she was satisfied he proved that PWl was wounded and prayed that the 1st ground was baseless and it be dismissed. As to the 2nd ground, she acknowledged the case was fully heard by Hon. Kawiche who wrote the judgment which was read by Hon. Jang'andu. She went on to say that at page 16 of the proceedings, the Resident Magistrate In charge had assigned

the file to Hon Jang' andu as Mrs. Kawiche was sick and had been . prescribed bed rest. It was her view the ground is baseless ond it ought to be dismissed In opposing · the 3rd ground, Ms. Mwakyusa insisted the appellant's defence was considered as is seen in the judgment but the trial magistrate was satisfied it was inadequate to shake the proseG:ution case. She prayed the ground be dismissed and urged the conviction and sentence be upheld. lhe appellant's rejoinder on tho· 1st ground was to the effect that the prosecution witnesses· apart from the doctor were the cornplainant's relalives who cohspired against him. He clar[fied th_at the doctor (PW4) exomined the;c1jh1pldihc1ilt eleveli-days afier !he 3 • In regard to the 2nd ground, he said the case was heard by two different magistrates. It was heard by Hon. Kawiche but judgment was delivered by Hon. Luka after the file was taken to Hon. Mhina, ·the Resident Magistrate in charge. In support of his 3rd ground, the appellant maintained his defence was not considered by the trial court. He narrated he was acting on the instructions of the Chubi Village Executive Office named Said lsongo to arrest the complainant PWl after he had refused to voluntarily report at his office. That an exchange of words ensued and the complainant stabbed him with· a knife in his back whereupon he fainted and was taken for treatment at the

village dispensary and did not know what happened behind him. Having reviewed the record and the parties' arguments, I will now consider the appeal. The appellant's 1st and 4th grounds are related as they allege the prosecution failed to prove its case beyond reasonable doubt and that the trial court convicted basing on weak evidence. It is clear; the trial court based its decision on or was convinced of the tettiYnorty·;·o.r>P.Vl4tJhe.·Yn.e-,c.elital·Jjoctor ·dnd·.~exrribttPf,l'~the· P:F.3::Jdrm~. I. thi11~ iLi~ __f2~L~_Q§0_tJo exami_O_~ t_he relevant passagE:; i_ r::1 ?~I!.}IL~! __!.0~----· _ _ PF3. It was written and I_ quote: .. · ..:..:" .:- ; .:..::;-: .~ ··..:t:;:;_,~~:.~--~=~~ ::·:,:::.7:-.~--:;;.;_~:-~--:::;:.: . :; .. ;;- -:z~ :.~~~~t".""~:,·S:-,;;:..:._+:;..:~:;~-:f.=::;;.·f~ ....::·:..::;,: ..;'_~:·,~-;,-;::~· .;..:..~- ..;. ·-:.::·::;:.;:.~;-. ·: ..·._·:;-::·~~ ~-::...:; ·--:~::·:..: ·..::.:·-:;:,:·_.:,: ..~.:.:..~:::.-·-·~,:.~, :,-:.:-:.,;:·-:_~ -:.- .· ~-: _-..-:·::··, ·· '--~·=-:··: -~.. ·---·-:__~.~- ·t t· "C..l!t W9Vnd c:;l~91Jed and stitched Deep cut woun_d on the lateral head. .. ..... . 4 Size-: length approx 8 cm long Depth approx½ crn deep" As was admitted by Ms. Mwakyusa, it was not possible for PW4 to observe the ½ centimeter depth of the wound on the complainant's head as the said wound had already been stitched up at the Chubi village dispensary

on 20/11/2015, the day of the incident. On 1/12/2015 when PW 4 inspected the wound at the Kondoa Dispensary, he cou!d only observe and comment on the length of the wound as it was visible on the surface. It defies reason that he opened up the healing wound in order to ascertain its depth. I am satisfied therefore that both PW4's testimony as well as Exhibit P1were unreliable to base a conviction as it did not prove the enormity of the wound, if there was any. I think the medical practitioner who stitched up the complainant's wound at Chubi village ought to have filled the PF3 and not PW4 who saw the wound eleven days later. I have also considered the rest of the prosecution witnesses to wit PW2 Fakih Sharif Hamadi and PW3 Maulid Maneno who in essence detail what they saw after the alleged incident. PW 1's evidence is not convincing as well as his conduct after the incident. If indeed he were grievot.;isly injured as alleged, why didn't ~ie Seek irr1n1edicife n1ec:Jical atrer~ifion of the district hospital bu I· ··-weA-t-·thefe·-+-1--deys-ofter-he ·wos·1njtjred?-+th-ereforff find the l st and 4th grounds having merit and I allow them . . - _-_ - -·-:···~·-;:. ·-•. -:._:!.'.:.:~~--:--_~·._:.__, . -.- ·::: - --··•:. =:, "' .: ....•:.,;:·~·•~!t~t:t.t:I~tf:gr~1IQ1:d:~L.:.tI1~~1tti:Q'.ttilJ.lgl10.c.:OI'.llo.~;,2:~s'L.i'.::f6.d.3Cs!.· . grounds as tt1e above two suffice to dispose of the appeal. L 5 consequently allow the appeal and quash the lower court's conviction and set the · sentence. The appellont is· to be freed forthwith unless he is lawfully held for some other cause.• It is so ordered .. A. MOHAMED

JUDGE 19/05/2017 The right of appeal explained. ' . ·A.-MOJiAMED'

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