CRIMINAL APPEAL NO 262 OF 2022 SYRIDION MICHAEL VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CRIMINAL APPEAL NO. 262 OF 2022 (CORAM: MKUYE. J.A., MWAMPASHI, J.A., And MURUKE, 3.A.) SYRIDION M ICHAEL............................... ........................... ....... APPELLANT

VERSUS THE REPUBLIC........ ......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mgonya, JJ dated the 16st day of May, 2022 in Criminal Appeal No. 164 OF 2021

JUDGMENT OF THE COURT 03rd & 15th May, 2024 MWAMPASHI, J.A.: On 09.05.2022, the District Court of Kinondoni at Kinondoni (the trial court) convicted the appellant, SYRDION MICHAEL, of the offence of causing grievous harm contrary to section 225 of the Penal Code [Cap 16 R.E. 2002; Now R.E. 2019]. Upon conviction, the appellant was sentenced to serve the period of four (4) years' imprisonment and in addition, he was ordered to pay Tshs. 1,000,000/= to the victim as compensation. The appellant's first appeal to the High Court was dismissed in its entirety, hence, the instant second appeal to this Court. It was alleged before the trial court that, on 01.08.2019, at Kinondoni Mkwajuni within the District of Kinondoni in Dar es Salaam Region, the appellant bit one Tanya Tasaluko on the right corner of her mouth causing her to suffer grievous harm. In proving the charge, the prosecution paraded a total of five (5) witnesses namely; Tanya Tasaluko (the victim/PWl), E. 5640 CpI. Janken (PW2), E. 5252 D/CpI Yusuph (PW3), Anold A. Mtenga (PW4) and E. 2719 CpI Maganga (PW5). Reliance was also placed on four exhibits; the appellant's cautioned statement (Exhibit PI), the PF3 (Exhibit P2), Six still pictures (Exhibit P3) and the statement of one Iddi Athuman (Exhibit P4). On the other side, the defence had three witnesses namely; Syirdion Michael (the appellant/DWl), Gerlad Lingo (DW2) and

Rashida Hassan (DW3). For the defence, three exhibits were tendered, that is, the medical prescription form (Exhibit D l), one still picture (Exhibit D2) and the PF3 (Exhibit D3). The brief facts of the case leading to the appellant's arraignment and conviction, as they can be gleaned from the record of appeal, are as follows; The victim (PW1) and the appellant (DW1) were neighbours living in the same rented house at Mkwajuni Kinondoni. In the material night, the two were on a drinking spree at a nearby pub with their friends namely, Gerlad (DW2), Lohay and Haji. While there, a fight broke out between the two, that is, between PW1 and DW1. As on what was the cause of the fight, each of the two claimed that the other was forcing to have a deep kiss and sex from the other. Further, the evidence show that, having been separated 2 from each other by their friends, PW1 was the first to leave. It is also in evidence that each of the two sustained some injuries. From the pub, PW1 went back to her room and she did not get out until at 12:00 noon on the next day, that is, on 02.08.2019, when her mother came and led her to Garden Police Post where the incident was reported to PW2. The incident having been reported to him, PW2 arrested the appellant at about 14:50 hours and took him to Oyster Bay Police Station where his cautioned statement which was tendered and admitted in evidence as

Exhibit PI, was recorded by PW3. As for PW1, who was also referred to Oyster Bay Police Station by PW2, she was taken to Muhimbili Hospital at about 01:00 hours where she was attended by PW4. According to PW4, PW1 had a fresh wound at her chin which had to be stitched. The PF3, on which he posted his observations, was tendered by him and admitted in evidence as Exhibit P2. PW5 was the case investigation officer who tendered in evidence six still pictures he had collected from PW1, as Exhibit P3. He also testified that on 20.08.2019, he visited the pub at which the incident had occurred, and recorded a statement from one Iddi Athuman, one of the witnesses who allegedly witnessed PW1 and the appellant fighting. On the reason that the said witness could not be found, his statement was tendered and received 3 in evidence as Exhibit P4 under section 34 of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act). In his sworn defence, the appellant maintained that he did not bite PW1 but it was her who attacked and bit his finger. He also stated that the fight between them broke [ate at about 03:00 hours and that after PW1 had left, he and DW1 went to report the case at Garden Police Post but they found it closed. In the afternoon he was called and asked to report at Garden Police Post before he was sent to Oyster Bay Police Station. Later he was taken to Mwananyamala Hospital where he

was attended by DW3. He tendered in evidence the medical prescription form as Exhibit D1 and one still picture showing the nature of the wound he had sustained, as Exhibit D2. His evidence was supported by DW2 and DW3 who also tendered in evidence the PF3 which was admitted as Exhibit D3. Based on the evidence from PW1, the appellant's cautioned statement (Exhibit PI), the six still pictures (Exhibit P3) and the witness statement of one Iddi Athuman (Exhibit P4), the trial court found the appellant guilty of the charged offence, convicted and sentenced him in the manner we have alluded to earlier. Undaunted, his first appeal to the High Court against the trial court's conviction and sentence having been unsuccessful, the appellant has preferred the instant second appeal to this Court. 4 The appellant's substantive memorandum of appeal lodged on 21.10.2022 contains a total of 14 grounds of complaint. One, that PW l's evidence was contradictory, concocted, untenable and not cogent, Two, that the condition at the scene of crime was not conducive and favourable, Three, that there was a fight between PW1 and the appellant, Four, that PW l's evidence ought to have been discredited bearing in mind that she even misbehaved before the trial court, Five, that Exhibit PI was un- procedurally admitted in evidence, Six, that Exhibit P2 was wrongly relied upon, Seven, that the chain of

custody of Exhibit P3 was broken and it was un-procedurally admitted in evidence, Eight, that PW5's evidence was not tenable and cogent and it did not connect the appellant to the offence, Nine, that Exhibit P4 was un-procedurally admitted in evidence, Ten, that PW l's evidence was not creditable and reliable, Eleven, that section 231 of the Criminal Procedure Act was not complied with, Twelve, that having taken over the trial from his predecessor, the successor trial court magistrate erred in not recalling the witnesses whose evidence were recorded by his predecessor, Thirteen, that the defence evidence was unjustifiably disregarded and Fourteen, that the High Court did not re­ assess, re-evaluate and re-analyse the evidence on record. In addition to the above grounds of appeal, on 13. 01.2023, the appellant lodged a supplementary memorandum of appeal comprising 5 three ground of complaint to the effect that, One, the two lower courts did not take into consideration the states of both PW1 and the appellant at the scene of crime, Two, that Exhibit P3 was admitted in evidence in contravention of section 18 (2) and (3) of the Electronic Transaction Act No 13 of 2001 and Three, that no certificate regarding the preparation of Exhibit P3 was tendered in evidence to authenticate Exhibit P3. We should note, at this very point, that, the above last two grounds of appeal are repetition

or reinforcement of ground 7 in the substantive memorandum of appeal. Again, on 20.03 2023, the appellant filed his written submissions in which, among other things, he also prayed for leave to argue another ground of appeal which is to the effect that, the charge was defective as the name of the victim indicated in the particulars of the offence differ from the names stated in the PF3 and that of PW1, suggesting that the victim did not testify. At the hearing of the appeal, whereas the appellant appeared in person, unrepresented, the respondent/Republic was represented by Mses. Hope Charles Massambu, learned Senior State Attorney and Joyce Nyumayo, learned State Attorney. When given the floor to argue his grounds of appeal, the appellant adopted all of his grounds of complaint, written submission and list of 6 authorities. Having done so, he prayed for the Court to allow the appeal on the basis of the grounds raised. On her part, Ms. Massambu, who did not support the appeal, began by pointing out that grounds 1, 2, 3, 4, 8 and 10 in the substantive memorandum of appeal as well as ground 1 in the supplementary memorandum of appeal are new grounds based on facts which were not raised before the High Court. She argued that, under sections 4 (1) and 6 (7) (a) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019] (the AJA), the Court has no jurisdiction to consider such grounds.

There was no response from the appellant on the above issue raised by Ms. Massambu. As rightly argued by Ms. Massambu, it is now settled that as a matter of general principle, this Court is precluded from entertaining grounds of appeal which are purely based on factual matters not on matters of law and which were not even raised and determined by the 1st appellate court. See- Abdul Athuman v. Republic [2004] T.LR. 151, Jafari Mohamed v. Republic, Criminal Appeal No. 112 of 2006, Hassan Bundala @ Swaga v. Republic, Criminal Appeal No. 386 of 2015, Galus Kitaya v. Republic, Criminal Appeal No. 196 of 2015 and Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 (all unreported). Having closely examined the three grounds of appeal that were raised by the appellant before the High Court and in consideration of the nature 7 of the complaints being raised in grounds 1, 2, 3, 4, 8 and 10 in the substantive memorandum of appeal and ground 1 in the supplementary memorandum of appeal, we agree with Ms. Massambu that the said seven (7) grounds of appeal are new and are based on factual matters. In law, we are precluded from entertaining such grounds and without much ado we accordingly disregard them. Regarding the additional ground which is to the effect that the charge was defective because it has, in its particulars of the offence, the name of the victim different from the name

given in evidence, it was submitted by the appellant that while it was one Tanya T. Saluko who testified as a victim (PW1) and also while according to the PF3 (Exhibit P2) it was one Tanya Tasakulo who was medically attended by PW4, the name of the victim indicated in the particular of the offence was Tanya Tasaluko. It was further submitted by the appellant that, when led by her advocate in examination in chief, PW1 stated that her name is Tanya Thoudoris Tabakulo. It was thus, insisted by the appellant that the victim did not testify and further that there was a variance of the victim's names between the names indicated in the particulars of the offence and the names stated in evidence not only rendering the charge defective but also creating doubts as to who was the actual victim. He also argued that the prosecution ought to have amended the charge under section 234 (1) of the Criminal Procedure Act 8 [Cap. 20 R.E. 2019] (the CPA). To cement his argument on the variance of the names of the victim, the appellant referred us to the case of Mathias Samwel v. Republic, Criminal Appeal No. 271 of 2009 (unreported). Responding to the above ground of complaint, it was argued by Ms. Massambu that, the variation of the victim's names was occasioned by typing errors. She insisted that the victim testified as PW1 and further that as the appellant and PW1 knew each other well, then if

PW1 was not the victim, the appellant ought to have raised the complaint when PW1 was testifying. Raising such a complaint at this stage is an afterthought and an unfounded complaint, she contended. The complaint on the variation of the victim's names, should not detain us. While we agree with the appellant that the victim's names appear to be slightly different in the particulars of the offence and in the PF3 (Exhibit P2), we are in agreement with Ms. Massambu that, under the circumstances of this case, the variation is immaterial. As rightly submitted by Ms. Massambu, the variation appears to have been a typo problem. We also agree with Ms. Massambu and find the complaint that PW1 was not the victim or that the victim did not testify, baseless. PW1 and the appellant were neighbours living in the same rented house and they were thus not strangers to each other. From the very beginning when the charge was being read over to him, the appellant knew who was the victim named in 9 the particulars of the offence and even when PW l was testifying he knew that it was the victim who was testifying, otherwise he could not have failed to raise his protest. We thus find that the slight mis-spelling of the victim's names in the particulars of the charge was, under the circumstances of this case, not fatal and did not render the charge defective. The ground of complaint is dismissed. On

ground 5 which is to the effect that the appellant's cautioned statement (Exhibit PI) was un-procedurally received in evidence, it was submitted by the appellant that although the two lower courts relied on Exhibit PI on account that it was received in evidence without objection, the appellant was however, not afforded an opportunity to either raise the objection to its admission or not hence, denying him the right to be heard. The appellant argued further that, Exhibit PI lacked corroboration and it was procured in contravention of sections 53 and 58 of the CPA. It was also submitted by him that the said Exhibit PI was a total fabrication because while it is in evidence that the appellant was arrested by PW2 at around 14:50 hours, it is indicated in the said Exhibit PI that the same was recorded from 11:21 hours to 12:45 hours meaning that it was recorded before the appellant was arrested. For the above reasons, the appellant prayed for Exhibit PI to be expunged from the record. 10 Ms. Massambu responded to ground 5 by submitting that according to the record of appeal, Exhibit PI was received in evidence after the appellant had been asked if he had any objection or not and after the appellant had registered a no objection to the admission of the same. She thus argued that the complaint by the appellant that he was denied his right to be heard is an afterthought and baseless.

When probed by the Court, Ms. Massambu admitted that the contents of Exhibit PI were improperly divulged by PW3 before the same had been tendered and admitted in evidence. She was, however, of the view that the impropriety did not prejudice the appellant. On ground 5 of appeal, we firstly agree with Ms. Massambu that, the complaint by the appellant that he was not afforded his right to be heard when Exhibit PI was being tendered in evidence is baseless and an afterthought. The record of appeal at page 29, clearly shows that before the admission of Exhibit PI, the appellant's counsel was asked whether he had any objection to the admission of Exhibit PI and the counsel is on record stating that he had no objection. The appellant's complaint that he was not heard is thus unfounded. The above notwithstanding, it is our observation, as it can be clearly evidenced at page 28 of the record of appeal, that before Exhibit PI could be tendered in evidence, PW3 extensively divulged its contents. This, as ii conceded by Ms. Massambu, was not proper. The contents of Exhibit PI ought to have been read out after the said exhibit had been admitted in evidence and not otherwise. Divulging or reading out the contents of an exhibit before it is admitted in evidence is a fatal irregularity. In the case of Manje Yohana & Another v. Republic (Criminal Appeal No. 147 of 2016) [2018] TZCA 547 (7 March

2018, TANZLII), wherein the Court was confronted with a similar situation, it was observed thus: "It is apparent in the quoted proceedings o f the case on 10.06.2011 that the Extra Ju d icia l Statem ent o f the firs t appellant was read out in court before it was adm itted in evidence. That was patently wrong. I t is w rong to re a d o u t a d ocu m en t b e fo re it is a d m itte d in evid en ce [Emphasis added] We also agree with the appellant that the fact that Exhibit PI appear to have been recorded before the arrest of the appellant leaves a lot to be desired in as far as its truthfulness and reliability is concerned. As rightly submitted by the appellant, while it is indicated in Exhibit PI that the same was recorded by PW3 at Oyster Bay Police Station on 02.08.2019 at about 11:21 hours, according to PW2, the appellant was arrested by him at 14:50 hours on the same day before he was sent to Oyster Bay Police Station. If that was the case, how could Exhibit PI be recorded at Oyster Bay Police Station by PW3 at 11:21 hours before the arrest of the appellant? It should 12 also be borne in mind that in his defence, the appellant, among other things, complained that the said exhibit was recorded on 05.08.2019 and not on 02.08.2019, The above pointed out doubts on Exhibit PI together with the fact that its contents were divulged before its admission in evidence, renders

Exhibit PI liable for expunction from the record, which we hereby do. Regarding ground 6 of complaint that, the lower courts erred in relying on the PF3 (Exhibit P2), it was submitted by the appellant that, Exhibit P2 contradicted the evidence given by PW4 because while it is indicated on it that it was issued on 02.08.2019, PW4 testified that he attended PW1 on 03.08.2019. It was further argued by the appellant that it is doubtful that Exhibit P2 was filled by PW4. On ground 6 of appeal, Ms. Massambu's response was simply that, the ground is baseless. He referred us to page 33 of the record of appeal and argued that the variance on dates was explained by PW4. Having examined Exhibit P2 and the evidence given by PW1 and PW4 we agree with Ms. Massambu that ground 6 of complaint is baseless. There was no any material variance or contradiction between the date indicated on Exhibit PI and what was testified by PW4. A PF3 is a medical examination report form issued by the Police Force. Part I of the PF3 contains the details of the request for medical examination and it is filled 13 by the police while Parts II, III and IV are filled or completed by a medical practitioner who conducts the medical examination in question. According to the PF3 in question, that is, Exhibit PI, the same was issued by the Officer in Charge of Garden Police Post on 02.08.2019 which is the date the case

was reported to the police by PW1. The evidence also show that from Garden Police Post the case was referred to Oyster Bay Police Station and according to PW1 it was not until at about 01:00 hours when she was taken to Muhimbili Hospital where she was attended by PW4. It is thus clear that Exhibit PI which was filled by the Officer in Charge of Garden Police Station on 02.08.2019 did not reach PW4 until at 01:00 hours which was another new day of 03.08.2019. the complaint by the appellant is thus unfounded and it is accordingly dismissed. On ground 7 of complaint, it was submitted by the appellant that apart from the fact that the chain of custody of the six still pictures (Exhibit P3) was broken, the same were received in evidence while section 18 (2), (3) and (4) of the Electronic Transaction Act, 2015 was not complied with. Placing reliance on the case of Nassoro Salum @ White v. Republic, Criminal Appeal No. 349 of 2017 (unreported), the appellant implored us to expunge Exhibit P3 from the record. Ms. Massambu, readily conceded that Exhibit P3 has to be expunged from the record because the same were prepared in contravention of 14 section 202 of the CPA. She pointed out that the said pictures lacked a certification by an officer appointed by an order of the Attorney General. On our part, we agree with Ms. Massambu that, Exhibit P3 ought not to have been received in evidence

for contravening section 202 (1) of the CPA, under which it is provided that: "202 (1) In any inquiry, tria i o r other proceedings under th is Act, a certificate in the form in the Third Schedule to th is Act, given under the hand o f an o ffice r appointed b y order o f the Attorney Genera! fo r the purpose, who sh a ii have prepared a photographic p rin t o r a photographic enlargem ent from exposed film together with any photographic prints, photographic enlargem ents and any other annexures referred to therein, sh a ll be evidence o f a ll the facts stated in the certificate". For the above given reason, ground 7 of appeal is allowed and Exhibit P3 is hereby expunged from the record. With regard to ground 9 of the complaint, that the written statement of one Athumani Iddy (Exhibit P4) was un-procedurally admitted in evidence, the appellant submitted that the two lower courts erred in law in relying on such an exhibit on the ground that its admission in evidence was not objected to while the same had been obtained in contravention of 15 section 34B (2) of the Evidence Act. He prayed for the said exhibit to be expunged from the record. Ground 9 of the appeal was also readily conceded by Ms. Massambu who argued that as rightly submitted by the appellant, indeed, Exhibit P4 was received in evidence in contravention of section 34B (2) of the Evidence Act. She pointed out that

Exhibit P4 lacks the declaration of the maker as it is required by section 34B (2) (c) of the Evidence Act. She thus, joined with the appellant in urging the Court to expunge Exhibit P4 from the record. We have examined the written statement of one Athumani Iddy (Exhibit P4) appearing at page 92 of the record of the appeal and observed that, as rightly complained by the appellant and conceded by Ms. Massambu, the said exhibit ought not to have been admitted in evidence. Exhibit P4 does not contain a declaration by its maker, that is, Athumani Iddy, as it is required by section 34B (2) (c) of the Evidence Act that: "(2) A w ritten o r electronic statem ent m ay oniy be adm issible under th is section- (a) N/A (b) N/A ( c) if it contains a declaration b y the person m aking it to the effect that it is true to the best o f h is knowledge and b e lie fand that he made the statem ent knowing 16 that if it were tendered in evidence, he w ouid be liab le to prosecution fo r perjury if he w iifu lly stated in it anything which he knew to be false o r d id not believe to be true. As we have amply alluded to above, because Exhibit P4 does not contain the required declaration by its maker to the effect that it is true to the best of his knowledge and belief and further that he made it knowing that he might be prosecuted for perjury if the statement was false, then the same was

inadmissible in evidence. The trial court erred in admitting it in evidence and relying on it. The same is hereby expunged from the record. Grounds 11,12,13 and 14 in the substantive memorandum of appeal were not explicated in the written submission. However, the grounds were adopted by the appellant. These four remaining grounds of complaint were responded to by Ms. Nyumayo, leaned State Attorney who, as we have alluded to earlier, appeared alongside Ms. Massambu for the respondent/Republic. Regarding ground 11 of the appeal, which is to the effect that section 231 of the CPA was not complied with, it was argued by Ms. Nyumayo that the complaint is baseless because according to the record, the rights of the appellant in defence were explained to the appellant. To substantiate this, 17 Ms. Nyumayo referred us to page 52 of the record of appeal, where the trial magistrate indicated that section 231 of the CPA had been complied with. For that reason, Ms. Nyumayo prayed for ground 11 to be dismissed. On ground 11 of the appeal, we agree with Ms. Nyumayo that the complaint by the appellant that he was not properly addressed in terms of section 231 of the CPA is baseless. As rightly argued by Ms. Nyumayo, the record is clear at page 52 of the record of appeal that after the ruling on a case to answer had been delivered, the trial magistrate put it on record that the appellant was

addressed under section 231 of the CPA. Such an indication in the record, that section 231 of the CPA was complied with, is sufficient and no complaint can be raised to the contrary. Fortunately, enough, the record show that on the date the ruling was delivered whereby the appellant was found with a case to answer, the appellant was being represented by an advocate, one Mr. Geofrey. In such circumstances, no miscarriage of justice could be expected to have been occasioned because the appellant had the advantage of being guided by his advocate on what would follow after him being found with a case to answer. We thus find ground 11 baseless and dismiss it accordingly. As for ground 12 of appeal, where it is being complained that the successor trial magistrate did not recall the witnesses whose evidence was recorded by his predecessor, it was submitted by Ms. Nyumayo that section 18 214 of the CPA, gives discretion to the successor trial magistrate who takes over a partly heard trial from his predecessor, to either recall the witnesses or not. She further argued that in the instant case, as it can be seen at page 58 of the record of appeal, the succeeding trial magistrate, after explaining to the parties the reason for taking over the trial, he opted to proceed with the trial from where his predecessor had ended. Ms. Nyumayo insisted that section 214 (1) of the CPA was complied

with and she thus, prayed for this ground to be dismissed. On our part, we again agree with Ms. Nyumayo that the appellant's complaint underground 12 of the appeal is unfounded. As rightly submitted by Ms. Nyumayo, the record of appeal at pages 57 to 58, clearly show that the succeeding trial court magistrate after assigning reasons why he was taking over the partly heard trial, and before he could proceed any further, he involved the parties on whether he would proceed with the trial from where his predecessor had ended or not. Both parties, including the appellant's advocate, are on record expressing that they were ready and willing for the trial to proceed where the predecessor trial magistrate had ended. Under section 214 (1) of the CPA, it is the succeeding trial magistrate, not the parties, who is given an option whether to re-summon the witnesses and recommence the trial or not. In the instant case the 19 successor trial magistrate was not even required, by the law, to let the parties express their views if they were willing for the trial to proceed from where it had ended or not. The appellant can thus, not be heard complaining that, the witnesses whose evidence was recorded by the predecessor trial magistrate, were not re-summoned when he himself, through his advocate, is on record stating that he was ready and willing for the trial to proceed where the predecessor

trial magistrate had ended. Ground 12 of appeal is thus, accordingly dismissed. To our considered view, the remaining grounds 13 and 14 of appeal, which are to the effect that the defence evidence was unjustifiably disregarded and that the whole evidence on record was not properly re­ evaluated, have to be conjunctively dealt with under the general ground on whether the case against the appellant was proved to the required standard. This last and general ground can be narrowed down to whether having expunged from the record Exhibits PI, P3 and P4, that is, the appellant's cautioned statement, the six still pictures and the written statement of one Athumani Iddy, respectively, the remaining evidence was sufficient to warrant the conviction. Looking at the evidence of PW1, PW2, PW4 and Exhibit P2 (the PF3), the fact that PW1 had sustained grievous harm cannot be disputed. The only crucial issue is whether it was the appellant who had caused PW1 to 20 suffer the said grievous harm by biting her. Is there sufficient evidence to prove beyond reasonable doubt that, it was the appellant who caused the appellant to suffer the grievous harm in question? While to the appellant there was no remaining evidence, after Exhibits PI, P3 and P4 have been expunged from the record to prove that it was him who caused PW1 to suffer the grievous harm in question, to the two learned State Attorneys,

even in the absence of such evidence, still there was sufficient remaining evidence proving that the grievous harm sustained by PW1 was caused by the appellant. The follow-up question is what was the remaining relevant evidence supporting the prosecution case that it was the appellant who inflicted the grievous harm in question to PW1? In the absence of the evidence from Exhibits PI and P4 the remaining evidence relevant to the issue as to who did cause the grievous harm in question to PW1, is that from PW1 herself. There is no any other piece of evidence on record which is to the effect that it was the appellant who inflicted the grievous harm in question to PW1. Our task is thus, to re­ examine the evidence given by PW1 in that respect and also the evidence given in defence and see whether it was sufficiently proved that it was the appellant who caused PW1 to suffer the grievous harm by biting her. 21 According to PW1 after she had been separated from the appellant and after the appellant had bitten her, which to her, happened at about 23:00 hours, she left the pub and proceeded to her room. She did not think of reporting the case to the police or going to hospital. She did not do so even on the following day till at 12:00 noon when her mother came and led her to Garden Police Post. The conduct and inaction of PW1 leaves a lot to be desired. Was PW1 really injured by the

appellant at the pub? If she was, how and why was she so reluctant to report the appellant to the police? It should be borne in mind that on his part, the appellant who denied to have bitten PW1 and who claimed that it was PW1 who bit his finger is on record testifying that after the fight which to him happened at around 03:00 hours, he and DW2 went to report the case at Garden Police Post but they found it closed. His denial to have bitten PW1 is supported by DW2 who, as also testified by PW1, was among the friends who were with the two on the drinking spree in question. DW2 testimony was to the effect that the two fought each other but he did not see the appellant biting PW1. From the evidence given by PW1 and in consideration of the defence evidence given by the appellant and DW2, the possibility that after leaving the pub, PW1 might have sustained the injury in question somewhere else, cannot completely be ruled out. It is our considered finding that the 22 defence evidence raised reasonable doubts in the prosecution evidence. It is doubtful that it was the appellant who caused PW1 suffer the grievous harm in question. Settled, are the principles that reasonable doubts in the prosecution case should be resolved to the benefit of an accused person and also that it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt. The importance for

the prosecution to prove the case against an accused person beyond reasonable doubts cannot be overemphasised. As to what is a proof beyond reasonable doubts, the Court in Magendo Paul & Another v. Republic [1993] T.L.R. 219, stated that: "Fora case to be taken to have been proved beyond reasonable doubts, its evidence m ust be strong against the accused person as to ieave rem ote p o ssib ility in h is favour which can easily be dism issibie". All said and done, it is our firm finding that it was not proved beyond reasonable doubt by the prosecution that it was the appellant who caused PW1 to suffer the grievous harm in question. The High Court was at fault in sustaining the conviction and the sentence imposed on the appellant by the trial court. The ground that the case against the appellant was not proved to the hilt is thus allowed. In the event, for the above given reasons, we find the appeal meritorious and allow it. The conviction against the appellant is quashed and the sentence imposed on him as well as the compensation order, are set aside. It is ordered that the appellant be set at liberty forthwith unless he is being so held for any other lawful cause. DATED at DAR ES SALAAM this 14th day of May, 2024. R. K. MKUYE

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Judgment delivered on this 15th day of May, 2024 in the presence of the appellant in person and Ms. Cristy Joas, learned State Attorney for 24