20180420 TZHC Dodoma

·...... "ORIGINAL" · IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION PC CRIMINAL APPEAL NO. 13 OF 2017 (Originating from the District Court of KONDOA MJINI PC Criminal Case No.494 of 2016, APPEAL NO. 6 OF 2017, KONDOA DISTRICT COURT) MUSTAFA YUSUFU MKINA ............................... APPELLANT ~ VERSUS MBARAKA JUMA.... ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT JUDGEMENT Mansoor, J: 20™ APRIL 2018. At the Trial Court the Respondent/ accused herein was charged with the offence of threatening to kill by using an arrow c/s 89 (2) (b) of the Penal Code, Cap 16 R: E 2002. The particulars of the offence shows that the Respond~nt did threaten to kill the Appellant with an 1 "ORIGINAL" arrow at Hachwi Village in Kondoa District on 21st day of December, 2016 at about 17.30 hours. The Primary Court - -Iield -the · trial - but - found that __the ____c~se against the . - -- - .. -- -· - - - -- - -· respondent was not proved beyond reasonable doubt; the Court therefore acquitted the respondent of the offence - cha-rged-. The Ap_peJlant appealed to the District Court, the District Court as well re-evaluated the evidence presented by the parties at the trial court and found out that the Appellant was not able -to prove that the. arrow that was presented in court belonged to the respondent, and that PWl was not able to satisfy the court on how he identified the accused since it was dark at night and the accused was hiding in the bush. The District Court confirmed the decision of the Primary Court. Still aggrieved by the decisions of the lower court, the Appellant filed the second appeal to the Court raising the following grounds: 2 "ORIGINAL" 1. That the trial court as well as the District Court erred to reach a verdict of dismissing the case as well as the appeal whereas -the complainant proved his case beyond reasonable doubt; 2. The trial court as well as the District court erred in basing their - decis-iohs-- upon · · weak- and cooked evidence of the accused and his witnesses; --a~ -The- . triaL court . _erred in discarding the strong evidence of the Appellant; 4. The Trial Magistrate was biased. Parties appeared in court for hearing unrepresented. The Appellant insisted that he has proved his case beyond reasonable doubt since at 19.15 hrs. it was still daylight, and that he knew the respondent before the date of the incident, he said he saw him , he was wearing a green jacket (jezi ya yanga) and he was hiding in the bush. He 3 "ORIGINAL" said, the respondent had an arrow and he shoots the appellant with the arrow. The appellant said he shouted for help but the respondent managed to run away. People came to the scene and they found the arrow on the scene. The Village Executive Officer was also there, and the respondent was arrested the next morning. He said there was nobody at the scene; they were only two of them. He said his witness the VEO turned hostile in court since he was demanding money from him. He also said, he and the respondent's mother are relatives and he took care of the respondent's mother, and now they respondent takes his cattle for grazing in his farms and this destroys his crops. The Respondent submitted that all what was submitted by the Appellant is not true. He said the Appellant's farm is bordering his parent's farm and that when he went to his parent's farm at around 15.00 hrs. 4 "ORIGINAL" the Appellant attacked him. He says, there is bad blood between the Appellant and the Respondent's family as the Appellant had a case with the Respondent's' grandfather, and that the Appellant lost the case, that what the Appellant is doing now is revenge. He denied to have ever attacked the Appellant with the arrow. I have heard the parties submissions and also re- evaluated the evidence on record, and I must say that, it is the cardinal principles of law of he who alleges must prove as stated in Section 110 of the Evidence Act, Cap 6 R: E 2002 and as stated in the case of Rock Beach Hotel limited vs. Tanzania Revenue Authority, Civil Appeal No. 52 of 2003 , Court of Appeal observed: "we are mindful of the provisions of Section 110 of the Evidence Act, 1967 Cap 6, R:E 2002 which places the 5 "ORIGINAL" burden of proof on he who alleges by stating inter alia: 110 (1) whoever -desires -any cour_t__ to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that p·erson.· ... ~-." At trial Tribunal, the Appellant testified himself, and PW2 was the Police Officer G. 4137 DC Leonard. The Appellant said there was no one else at the scene but himself and the Respondent. The Police Officer testified that he was never at the scene of crime, and he only investigated the case. He said the respondent was remanded in police custody and that he interviewed him 6 . ~·'ir.---~ "ORIGINAL" but the respondent denied to have ever attacked the appellant. That was all the evidence of the Appellant in --,----.- ..... proving his case. -------.,_ ... _, ------ The section under which the respondent was charged at the Trial Court reads as follows: 89. - (2) any person who- ----~- (b) With intent to alarm any person discharges a fire- ---------------------- arm or commits any other breacli of-th-e---peaGe-, ____ commits an offence and is liable to imprisonment for one year and if the offence is committed at night the offender is liable to imprisonment for two years. There was no proof whatsoever which established that the respondent discharged a firearm or committed any breach of the peace. In criminal cases the burden of proving that the accused committed the offence lies on the 7 "ORIGINAL" prosecution. It was held in the case of Aburaham Daniel V Republic, Criminal Appeal No.6 of 2007 that: ''In any case the appellant had no duty to establish his innocence. Even if his defence was found to be weak, and even if he was found to be untruthful, the prosecution still-had the duty_ to prove his guilt beyond reasonable doubt ... " The .accused has no duty to establish his innocence and that he cannot be convicted even if his defense was· weak. In this case the Appellant failed completely to discharge his duty of proving the case beyond reasonable doubt. What is obvious from prosecution case is that he relied on circumstantial evidence since there were no eye witnesses. No witness is said to have witnessed the accused firing the arrow to the appellant since at the 8 "ORIGINAL" incident there were only the accused an~ the Appellant. ' The case depends entirely on circumstantial evidence and as stated in the case of Hamid Hamid Mussa Timotheo and Majid Mussa Timotheo vs. R (1993) TLR 125, in a case that its proof depends on circums~antial evidence, the evidence must· be straight, there should not be any doubt raised or contradictions or inconsistencies or missing links. The Appellant failed to bring any kind of circumstantial evidence which would have collaborated his allegations against the respondent. Since the Appellant did not submit grounds No 4 of his appeal that the Trial Magistrate was biased, this ground is marked abandoned. On grounds No 1-3, as stated herein above the Trial Court did not err in reaching to its decision as the 9 ---- • "ORIGINAL" appellant failed to prove his allegations beyond reasonable doubt, and that the conviction of the accused cannot be based on the weaknesses of the defense case. Based on the above, this appeal must fail and it is hereby dismissed. The decision of the trial Court and that of the first Appellate court are hereby co-rifirmed. It is so ordered. JUDGE 20TH APRIL 2018 Judgement delivered in Court today in the presence of the Appellant and the Respondent and Ms Khadija Nyuda the Court Clerk. 10