PC Criminal Appeal 21310 of 2024 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAAWANGA DISTRICT REGISTRY) AT SUMBWANGA PC CRIMINAL APPEAL NO. 21310 OF 2024 (Arising from Criminal Appeal No. 982 of2024 at Tanganyika District Court and originated from Criminal Case No. 70 of2023 at Mwe. SIITA BULAYA SAMALU.................................................................. APPELLANT LEYA NOMBA HUMO RESPONDENT 25th February & 3'r March, 2025 MRISHA, J. The appellant has appealed to this Court as a second appeal upon being dissatisfied with the decisions of the two lower courts. It was the decision of trial Court in Crimin No. 70 of 2023 at Mwese Primary Court which was made in favour of the Respondent, thus, the Appellant decided to appeal to the District Court of Tanganyika in Criminal Appeal No. 983 of 2024 which upheld the 1 decision of the trial Court. The appellant was aggrieved by such decision, hence present appeal. He therefore, decided to approach the court with a petition of appeal containing two grounds of appeal namely: One, That, the trial court erred in law to hold that the case at trial court was proved beyond reasonab oubt and two, That, the trial court erred in law to hold that the char rov ere was difference between charge sheet and evidence. However, subsequent to filing of t pondent filed a reply of petition of appeal disputin pp the appellant into strict proof. Briefly, the facts av nt appeal, are that the appellant was charged with the to kill contrary to section 89 (2)(a) and (b) of the Penal Co 22] where he was convicted and sentenced to pay a fine of Tsh.200,0 0/= or in default of payment of fine, to save a period of one year in jai parties to the said case were spouses living at Katente hamlet within Bujombe village within Tanganyika District. They passed through matrimonial disputes that led to the criminal case. 2 Upon hearing the parties, the trial Court proceeded to convict the appellant with the offence charged and sentenced him as stated above. The appellant was disgruntled with the decision of the trial court, but unsuccessfully appealed against such decision before the first appellate court, hence this appeal. The hearing of the appeal was by a way of written submissions and the appellant was represented by Mr. Laurence John, learned advocate while the respondent was unrepresented and parties complied with the Court’s order. In his submission, Mr. Laurence John, learned advocate for the appellant argued on the two grounds of appeal together. To begin with, he cited the case of Hamisi Mbwana Suya vs R, [2017] T.L.R. 160 CAT which elucidated the principle of criminal trials that, it is the duty of the prosecution to establish the case beyond reasonable doubt. He further argued that, the case against the appellant was not proved beyond reasonable doubt. One of the reasons he assigned, was the variation between the charge and evidence adduced in court arguing that while in the charge sheet it is alleged that the offence was committed on 25.09.2023, the evidence adduced by the respondent reveals that the offence occurred on 24.10.2023 midnight to 25.10.2023. 3 The learned advocate referred the case of Salim Abdallah Maganga vs R, Criminal Appeal No. 285 of 2020 [2023] TZCA 17680 (2 October 2023) (Tanzlii) and Mohamed Juma @Mpakama vs R [2019] T.L.R 514 (CA) and submitted that the variation between charge and evidence is fatal. In later case, the Court of appeal held inter alia, that: We think, the discrepancy between the ty entioned in the particulars of the charge and the prosecution witnesses is not minor It goes to count Secondly, Mr. Laurence submi tha ondent’s witnesses testified on hearsay evidence, the evid as evidential value to convict the accused. In his vie f SM M3 and MS4 were hearsay evidence and had no e nce it must be discredited. To support his submissi d cas Vumi Liapenda Mushi vs R, Criminal Appeal No. 327 016 [20 197 (12 October 2018) (Tanzlii). The third point ie y the learned advocate is the issue of contradiction of the respondent’s witnesses evidence. He submitted for instance, that the respondent testified that she reported the incident to the hamlet leader, while the hamlet leader testified, he went to mediate a matrimonial dispute between the parties. 4 According to him, the contradiction is fatal to the prosecution side as it was stated in the case of Mohamed Said Matula v R, [1995] T.LR. 3. Moreover, the learned counsel argued that the exhibits tendered and admitted in court contravened the provisions of the law. The Exhibit KUA 1 and Exhibit KUA 2 were not read out, and the remedy is to expunge them. To strengthen his argument, he cited the case of Pudensia A. Lugemarila vs Kampuni ya Kukopesha Msirikale, Civil Appeal No. 1 of 2023 [2023] TZHCLD 1204 (24 March 2023) (Tanzlii). Lastly, he argued that the appellant was convicted on circumstantial evidence which didn’t point irresistibly appellant to be the perpetrator of the offence as per the case of Simon Museke vs Uganda [1954] E.A. 6. In winding up, the learned advocate implored this Court to allow appeal, quash the decision of the two lower courts and set the appellant be free and order that the amount of fine of Tsh.200,000/= be refunded to the appellant. In reply, the respondent contended that the evidence adduced by the respondent during trial court proved the case beyond reasonable doubt. On material date on 24th October, 2023 and 25th October, 2023 the appellant and respondent were 5 together at Katente hamlet and the appellant threatened to kill the respondent by words. She further argued that the variation was not disputed by the appellant during trial court, and apart from that he did not cross examine on the said important party. That implies acceptance. To cement her argume he cited the case of Issa Hassan Uki vs R, Criminal Appeal No.129 [2 361 (10 May 2018) at page 16 and 17 the Court hel t: “Likewise, in Damian Ruhele, e of Cyprian Athanas Kobogoyo (supra), we e aware that there is a useful guidance in law that cross examine if he/she cannot examine nt matter ordinarily implies the acceptanc the witeess evidence. Again, s submi governing trial procedure in the Primary Court differs wi ubordin courts as well as High Court. To bolster her contention, she cited the c of alim Abdallah Maganga vs R, Criminal Appeal No. 285 of 2020 [2023] TZCA 17680 (2 October 2023) (Tanzlii) which provide for that effect. She also referred the case of Mohamed Juma @ Mpakama vs R, [2019] T.L.R 514 cited by the Appellant in his submission in chief. 6 He then distinguished the case of Vumi Liapenda Mushi vs R, Criminal Appeal 327 of 2016 by arguing that the mentioned witnesses in the said case were not present in the incident while in the present case; the respondent was a victim of the case. On the issue of contradiction of evidence of witnesses, e respondent argued that the issue of contradiction is a new issue w no the first appellate court. She submitted that the co the ground which was not raised in the lower co laced in the case of Ramadhani Msangi vs Sun da Land Appeal No. 39 of 2017 [2016] TZHC Land Division 44 18) (Tanzlii) at page 11 and Frida and Another o ki, Civil Appeal No. 136 of 2006 (unreported). I ou d that: “'ll at the appellate court cannot consider or deal wi not canvassed pleaded and or raised at the lower court. son, they are dismissed. He further distinguished the case of Mohamed Said Matula vs R, (supra) and argued that since the appellant raised a new issue which was not raised during the first appellate court, that said case is not applicable. 7 The learned counsel filed rejoinder, but the said rejoinder does not relate to this case as it respond to the issue of divorce and division of matrimonial properties, in which the instant case is deals with Criminal appeal from District Court of Tanganyika. Hence, the rejoinder filed by the learned counsel for the appellant is disregarded and the court will only consider the two documents, appellant written submission and reply of written submission by respondent in determining this appeal. ^k Upon reading the submissions of the both parties, the crucial question for determination is whether the first appellate court was faulty to render the first appeal meritorious. ■ ^^k In dealing with this appeal, I will start with the issue of variation on charge and evidence, the appellant has submitted that there was variation of date of charge and date mentioned in the testimony of the respondent. From the charge sheet prepared by police and filed in court, it reveals that the offence was committed on 25.09.2023. However, in her evidence SM1 mentioned the incident to have happened in 24.10.2023 midnight to 25.10.2023. The variation is on months. In charge sheet what is revealed is September, 2023 while SM1 mentioned the incident happened 8 in October, 2023. It is clear that there is variance between the charge and evidence of SM1 which should be resolved in favour of appellant, as a general rule. Nonetheless, in every general rule, there is an exception. The above mentioned general rule applies to the cases which are prepared and prosecuted by State Attorneys or Public Prosecutors authorised to prosecute criminal cases except in Primary Court. In the present case, the matter originated from Primary Court and the charge sheet was prepared by police, and the case was prosecuted by a complainant who did not prepare the charge. Under such circumstance, the rule should not be applied where there is variation between charge sheet and evidence and the court should consider the evidence adduced by the complainant. (See: Khamis Said vs Hawa Issa Kada, PC Criminal Appeal No. 7 of 2023). Regarding the issue of hearsay evidence, the learned counsel for the appellant argued that the evidence of SM2, SM3 and MS4 were hearsay evidence and had no evidential value, hence, it must be discredited. I had enough time to examine the evidence on records closely. My reading of the evidence on record shows that the prosecution witnesses SM2, SM3 and SM4 were there when the 9 appellant threatened the respondent by words. That is depicted in the records; at page 7 of the typed proceedings, where SM2 testified that: “Zilipita kama siku tatu hivi huyu mshtakiwa alifika nyumbani anapoishi mlalamikaji na kumkuta na sisi wakati huo tulikuwepo akaanza kumwambia mlalamikaji nimekwambia uhame sasa nitakukata mapanga wewe na hao ndugu zako na kututaka sisi tuondoke sisi tuiipoona hayo tuliona jambo limekuwa kubwa. Again, the SM3 testified at page 10 of the typed proceedings that: "Siku ya tarehe 09.11.2023 tulkuwa hapo nyumbani na ndipo tu/ipomwambia kama anataka tuondoke basi agawe mali ndipo Siita Bulaya aliposema atampatia Ngombe nne na mlalamikaji yeye alisema hawezi kukubali Ngombe nne pekee na sisi tulijaribu kumshauri mshitakiwa hawezi kumpatia Ngombe nne pekee na ndipo aliposema hata sisi atatukata mapanga na ndipo tuiipomshauri dada yetu kufika kituo cha Polis”. From the above passage, it is apparent that the respondent’s witnesses SM2, SM3 and SM4 gave clear evidence at the trial Court which was in line with the offence the appellant was charged with. Moreover, SM4 corroborated the 10 evidence SM2 and SM3 by testifying that he has heard the appellant expel the respondent and her family from his home. On the strength of evidence on record which I have tried to demonstrate, I do not see if there were any respondent’s witnesses who testified hearsay evidence and further to that, there is no any contradiction een the respondent’s witnesses. Theirs was direct evidence which is a e the court, and directly link the appellant with the commissi im Again, regarding direct evidence, sect the Evidence Act [Cap 6 R.E. 2022] provides that: “62 (1) Oral evidence mu be a direct, that is to say- (a) N/A .... (b) If it refers to a fac e heard, it must be the evidence of a sa Also, se V i Liapenda Mushi vs R, Criminal Appeal No. 327 of 2016 CAT reported). The cited case mentioned clearly that oral evidence must in all cases direct. SM2, SM3 and SM4 heard appellant threatening to kill the respondent, thus their evidence was direct and admissible in court. On the argument that appellant was convicted on circumstantial evidence which did not point irresistibly appellant to be perpetrator, this argument point does not 11 hold water because the appellant was charged with threating to kill contrary to section 89 (2) (a) of the Penal Code [Cap 16 R.E 2022]. Section 89 (2) (a) of the Penal Code states that: “(2) Any person who, (a) with intent to intimidate or annoy any person threaten to injure, assault, shoot at or kill any person or to burn, destroy or damage any property." According to the above provision of the law, the elements of the offence to be proved by the complaint or prosecution are threat to injure, assault, shoot at or kill. In the instant case, the evidence of SM1 who is a complainant, shows that she heard words from the appellant threatening to kill her; again, the evidence of SM2 and SM3 shows that they perceived words directly from the appellant when they were seated at respondent’s home when they were trying to resolve their problems, that is when the appellant threatened to kill the respondent. Again, SM4 testified on what he heard from the appellant when the appellant expelled the respondent and her family from his home. Consequently, the evidence of SM1, SM2, SM3 and SM4 is direct evidence and the trial court properly convicted the appellant and sentenced him based on direct and not circumstantial evidence. 12 In view of what I have demonstrated above, I find the appeal have no merit and hold that the prosecution (complainant) proved her case beyond reasonable doubt. In the event, I dismiss the appeal and upheld the concurrent findings of the two courts below. It is so ordered. DATED at SUMBAWANGA this 03rd day of rch, JUDGE 03 .2025 Right of a A.A. MRISHA JUDGE 03.03.2025 13