20190326 TZHC Mwanza

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HIGH COURT OF TANZANIA 1 I (DISTRICT REGISTRY)

ATMWANZA l I HC. CRIMINAL 1APPEAL NO. 326 OF 2018 I 1 (Arising from the Judgment of the District Court of Misungwi; in Criminal Case No. 106/ 2018) I .

1. WAVA S/O MALEKALJ, f>-.. ~ . ,:, \ /;);~~ . THE REPUBLIC ....................:...... ,....,................... RESPONDENT (J~~v . ~ ~ Ju~mh~~· \ Last Order: 08.03.- A.Z.MGEYEKWA, J \ \ ~ ~ c t Court of Misu~gwi, the appellants namely; Waya I 1 S/O Malekale, Mila S/O Mashauri .and Paschal S/O Shije jointly and together were stand charged for causing grievous harm .C/S 225 of the Penal Cod~ Cap.16 [R.E 2002].\The particulars count; on the 14th day of August 2018 around 07: 30 hours at Mwamaguha Village

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I I I 1 \ i iI c I I I within Misungwi District in· Mwanza Region beat one Mihayo D/0 Kubelela and caused her to suffer grievous harm. I I . \ The background concerning this appeal is as follows. PW1 testified that on the 14th day of August 2018 morning hours he found 1 ' people were uprooting his dengu· from his farm. PW1 asked the accused why are they uprooting his dengu then sh~sed the alarm. The accused started to beat PW1 until she was~ttAcon_ sc~snes~ The \\ ~ "'V/ appellant was brought to court and d:iarged\witti toree counts of. . ' "'( \ 1/. '-,_..) offence as stated above. The ,,appellant was not"t~tisfied hence this appeal. . 1 • ' · \) The appellant filed~~',Qrounds. as follows the same can be reduced to threJ~~u~~-a~al as follows: One, that th·e exhibit P01 was wr~IY. relied_ot:llb} the trial court. Two, the rights ~ ~ "- ~ of defence u~c:ler'sE!ction~ of the Criminal Procedure Act, Cap.20 [R.E 20Q2] ~~~l~hree, the prosecution case failed to prove h /~b~d' ""' b d b t e \ \ eye~~~na le ou t. 1 At~ring of the appeal, the appellants appeared in person while Ms. · Flyeregete, learned I State Attorney represented the respondent, Republic .. The appellant prayed for this court to adopt his grounds of· I appeal. \ I Ms. Flyeregete on her part supported the conviction and sentence for the reasons to be advanced herein. Arguing for ground number one of the appeal, Ms.

Flyeregete submitted that the court erred in relying on exhibit P01 she stated I that PW1 tendered the PF3, exhibit P01, and the appellant did not object. She continued to state that the appellants ~e~mpiled that the procedure of tendering the.. exhibit was~ft,.Joll~e~./4) was contrary to section 240(1)93) of the Cr~inal P~-Act?c:p. 20 . : ~ \V/'-0 [R.E 2002] the section required the court,whern (admitting medical evidence to call a Doctor to enab~Q~~~~o cross-examine the Doctor. She added ~ ~~~~ admitted without .informing the appellantsltiferefor~~~e be expunged from the court records. · ~- · ~ ' case ~eyond ~asonable doubt. She said on the 14th day of August 2018 Y o u r s the appell~nts' uprooted PW1 dengus. She continued to submit that after that PW1 raised the alarm and the appellant him arid cause him grievous harm. Ms. Fleregete added that the prosecution evidence of PWl, PW2, PW3, and· PW4 was I I credible because they saw the appellants beating the victim. The learned State Attorney submitte~ that the crime occurred in the morning;, therefore, the appellants were well identified since they I reside in the same Village. She added that although the exhibit P01 is expunged, it cannot supersede the evidence of eyewitnesses. The learned State Attorney further submitted that the appellant had an opportunity to cross-examine PW1, but they opted not to I • · cross-examine

~i_m;, therefore, it' was an admissio~~at what PW1 _ testified was correct. To support her argumel)t she citecJ~ectigQ 122 . <~ '\..~/). of the Evidence Act, Cap.6 [R.E 2002] and the\ase,of ~~grat,as Nicholaus @·Jeshi & another v R Crin_lir.ia1 A\pea?~1 of 2010 (unreported). • . .·. . ~ /?~~ Conce~ni~g ground rumber~of~peal,. th.at the. defence case ". '\:~ was not considered as\\ier (~~ban 232 Criminal Procedure Act, / appellant had an opportunity Cap.20 [R.E 2002J. S~tat~the to state thei~~?Jnd t~testified, but the trial Magistrate found exhibit P01 and PE2 the trial Magistrate was still duty bound to I comply with section 291 (3) of the Criminal Procedure Act Cap. 20 [R.E 2002]. The irregularities in the reception of exhibit P01 deprived the appellant the right to know not only the content of exhibit P01 but also the right to cross-examine which goes to the root of the minimum standard of an unfair trial. In the case of Thomas Ernest I I 4 ., r. ( Msungu @ Nyoka Mkenga v R Criminal Appeal No. 78 of 2012 . ( unreported), it was held that: " ... even if in this case the defence counsel did not object to the production of the post mortem report the trial judge was still duty bound to comply with section 291 (3) of the CPA." . I accordingly expunge the exhibit P01 from)ti'e~ourt record. Once I have expunged the exhibit P01 the ey~eo~~fs the testimonies of Mihayo D/0 Kubelela

~wzm~\~~ Selestina S/O Kulwa Mwamaguha (PW2), Kurwa Si~'-~Mar-e\l<ana Mwamaguha (~ (PW3), Dotto S/O Shija Mwamagwha--·{R.W t all) from the same Village. ~~ . \ l ~" ~"---.// It is in the r~0rd that~amed the first accused by his name Waya, )fut.:snr did'°'-Ot mention the names of the 2nd and 3rd (_( \:~ . . accused. PW2>.P,,-and PW4 did not mention the names of the appell~~d~~aid they know the appellants well. If they kneJ {hem we}w~aidn't they mention their names? and describe their }p')i.~)taking to account that the incident has occurred in the morning. Apart from the PF3 being expunged but I expected a Doctor as an important witness and neutral person was supposed to be called to testify. Therefore, I stand to differ with the learned State Attorney s that the PF3 was an important exhibit to prove that PW1 w~aten and injured since the appellants have denied committing· the said offence. Without the PF3 the· matter is left unsolved as to whether the victim was real beaten or not. ~aking to account that the incident occurred. ,ifl~ morning but the identification of the appellants is fft ~IJs~ed. The prosecution witnesses have just stated that th~w~~ants; theY identified them because they ·kne~~\\~h'ey-are residing in the same Village. If they were ~ in th~me Village PW2, PW3, PW4 wer~ in positio~ to des~'¾e~~rance and to.name the appellants in the earJ1est' o~ftumf . ,As It was

stated 1n the . I(: """fy,.~ v'~R-. [1'92'4] T,L.R 100, the Court of ca~e of Raymond Frah~s-~ Appeal ofTanzania<F.i'e~~ "In eve~~-casei~- whi~~here is a question as to the identity of the . ',. ~ 'V .. accuse~ the acrof..._0.5e having been a description given and the terms ~~~--ip~.given are matters of the highest importance of which \\ ·v vidence ought always to be given... " ~ Similarly in the case of Marwa Wangiti Mwita and Anothe1r v The Republic, Criminal Appeal No. 6 of 1995 (unreported) it was stated as follows: - "The ability of a witness to name a suspect's name at the earliest opportunity is an a/I-important assurance of his reliability. " 6 In the case of. JARIBU ABDALLAH i vs.• THE REPUBLIC, . . I . Criminal Appeal No. 220 of 1994, the Court of Appeal of Tanzania had the following to say:- ': ..... .... in matters of identification) it is not enough merely look at ' credibility of witnesses. The co1ditions fo\(d~catio~~;) ~, factors favouring accurate identi;cation. Equally im)cirtant is the appeal ideal but that is no guarantee aga1..'nst uJf!t~(J;J'. . I~ _}' f. .... Guided by the above authoriifeS;-I,.~f~~ that the reason that the incident occurred in th~~~~oes not suffice; thus the identification evidence~rose~tio~Jtraesses is unreliable. . The trial cou£was(~~tit~;or~corroborated evidence to ~ ""- ~ prove that t9~ appelJants~e t e o~e who uprooted the dengu in

the land of Pwi:J:~J1~~of cotoborating evidence, there is very little A~~idence left to1 connect the appellant with the offen~. Thereforf' t~e prosecutiori case did not have a strong legal leg to ~/leading to the con~iction of the appellant. Fortified by this sober legal truth, the conviction cannot stand. I With the above reasons, I find no need to discuss the other I grounds of appeal which were raised by the appellant as to do so I would be a mere academic exerdse. It only suffices to hold that, 7 ., there was no justification in finding the appellant culpable to the I charged offence. It is so ordered. I I 8