makarangajames vs republic 2023 tzhc 23606 15 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA

AT SHINYANGA CRIMINAL APPEAL NO. 31 OF 2023 (Arising from Criminal Case No. 27 of 2022, Bariadi District Court)

MAKARANGA JAMES APPELLANT Versus

THE REPUBLIC RESPONDENT

JUDGMENT Date of Last Order: 11/10/2023 Date of Judgment: 15/12/2023 s. M. KULITA, J. This is an appeal from Bariadi District Court, arising from the Criminal Case No. 27 of 2022. The appellant herein was convicted and sentenced to pay a fine of Tsh. 300,000/= (three hundred thousand shillings) or to serve the custodial imprisonment of 1 (one) in default, for Grievous Harm, contrary to the provision of section 255 of the Penal Code [Cap 16 RE 2019]. The Appellant opted to pay the fine. Apart from the said penalty the Appellant was also ordered to compensate the victim at the tune of Tsh. 200,000/= (Two hundred thousand shillings). 1 Aggrieved with the decision, the Appellant lodged this appeal relying on the following three grounds; 1. That, the prosecution case at the trial court was not proved at the required standard.

2. That, the trial Magistrate failed to evaluate the evidence on record.

3. That, the trial Magistrate failed to note that the evidence offered by the defense side during trial was credible as compared to that of the prosecution. The appeal was argued through oral submissions. While the Respondent (Republic) is represented by Ms. Caroline Mushi, Learned State Attorney, the appellant is represented by Mr. Geni Vitus Dudu, Learned Advocate. In his submission in respect of the 1st and the 2nd grounds of appeal collectively, the appellant's Advocate, Mr. Geni Vitus Dudu stated that the case at the District Court was not proved beyond all 2 reasonable doubts. He raised the argument that, in the said case of Grievous Harm there was no evidence that the appellant herein is the one who had thrown the konyagi bottle alleged to have hit the victim on head. He added that upon considering the fact that the crime is said to have been committed during the night of 2300 hours, it was obvious difficult for the victim to note a person who had injured him. The counsel submitted on the 3rd ground that the trial Magistrate didn't evaluate the evidence properly, hence reached into the wrong conclusion of convicting the appellant. The counsel concluded by praying for the appeal to be allowed, decision of the trial court be quashed and the sentence imposed be set aside. In the reply thereto, the State Attorney, Ms. Caroline Mushi, resisted the appeal by submitting that,

in reaching into the conclusion that the appellant herein committed the crime, hence 3 convicted, the trial Magistrate considered the fact that the evidence of prosecution side was credible as compared to that of the Accused person. The counsel said that the Doctor who examined the victim testified to have attended the victim and filled the PF3 (Medical Examination Report) which was admitted to court as Exhibit Pl. She added that the said PF3 shows that the victim was wounded on his head. Hence, there was no doubt that the victim (PW1) was actually injured by a sharp object on his head. As for the person who had injured the victim, the State Attorney submitted that, it is the Appellant who had done so by hitting the victim on his head. She added that the appellant was in conflict with the said victim regarding the victim's denial to the Appellant's prayer that he (victim) should take into his car some people who were there as passengers, seeking for transport. The State Attorney said that, that led the Appellant herein to abuse the victim, thereby the Appellant took a bottle and hit the victim on head. The said bottle broke and caused the victim to sustain the 4 said injury. On that, Ms. Mushi concluded that there was no mistaken identity regarding a person who had assaulted the victim. Submitting on the 2nd and 3rd grounds collectively, Ms. Mushi, State Attorney stated that at

page number 4 to 6 of the judgment the trial Magistrate evaluated the evidence of both parties to the case. The Magistrate also gave reasons that led to the decision she had made. The State Attorney concluded by praying for the appeal to be dismissed for having no merit. In rejoinder, the Appellant's counsel just reiterated what he had stated in his submission in chief. From the above rival submissions of both parties and upon going through the original record, I find it convenient to analyze all three , grounds of appeal collectively, as they all relate tn concept, that is, whether the case at the trial court was proved beyond all reasonable doubts. 5 According to the record, apart from the victim himself (PW1), no other witness testified to have seen the Appellant herein assaulting the Victim by using a bottle as alleged. The record further reveals that OW2 and OW3 who alleged to have been there at the scene at the material time, witnessed a quarrel between the victim (PW1) and one Shadrack Bulanga Nundu. They said that the victim had gone to the Appellant's shop to purchase cigarettes. The said defense witnesses, including DWl further stated that, the Appellant (OWl) who owns a shop at the scene premise had been trying to resolve the said quarrel, and that they didn't witness him assaulting the victim. However, OWl removed from his shop premise' the said two persons who were

quarreling, as well as the audience which was gathered there at the shop premise watching the said quarrel. Further, there is a testimony in the record, as per OWl, that the victim was beaten by the said stranger who was demanding his money from the said victim. 6 DWl also alleged that, in resolving the quarrel between the victim and the said stranger, he prevented the Victim from beating the enemy/stranger and that led the victim to be anger, hence blamed the appellant herein. It is the duty of the prosecution to prove its case beyond all reasonable doubts. Basically, the said burden does not shift to the Accused person. However, in analyzing the evidence adduced during trial, the Magistrate should consider not only the Prosecution case but also the defense case. The impugned judgment transpires that, though she did record its summary, the trial Magistrate never analyzed the evidence adduced by the defense side during trial. As for the prosecution evidence, upon going through it in the record, I don't see it being meritorious enough to convict the Appellant. In my further observation over the trial court's record, I have noted that, though the record, particularly the prosecution evidence, 7 transpires that there were many people at the scene, only the victim testified as an eye"witness for the prosecution. Apart from the testimony of the victim himself (PW1) who alleged to

have been assaulted by the Appellant, all other witnesses for prosecution, PW3 and PW4, testified on hearsay as to who had assaulted the victim. Neither of them witnessed the incident. PW3 who was the Investigation Officer of the case stated that, in his investigation he discovered that the Appellant herein is the one who had committed the crime. The reason behind, according to his testimony, is that he was so told by the victim, and that the appellant confessed before him. As for PW4 who is also a Police Officer at Dutwa Police Station, his testimony is to the effect that he just received the victim and accused (appellant) while on duty thereat Dutwa Police Station. The said testimonies by PW3 and PW4 have no legal weight on the participation of the Appellant herein in assaulting the victim. It means, the evidence adduced by the victim (PW1) on the participation of the Appellant in assaulting him, has no 8 corroboration for no reason, hence unworthy of credit. Even the testimony of PW3, that the Accused (Appellant) confessed before him, also has no proof as there was no caution statement taken, if the Appellant really confessed before him. For those reasons, I find that, the case at the District Court was not proved beyond all reasonable doubts which is a standard of proof for criminal cases. That being the case, I hereby allow the appeal and consequently acquit the Appellant. It follows therefore that, the orders for payment of fine and compensation for the victim are accordingly quashed. ~ S.M. KULITA

JUDGE 15/12/2023 9 ~', /