Jumanne Juma Bosco and Another vs Republic (Criminal Appeal No. 206 of 2012) [2014] TZCA 2246 (11 February 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA. -(CORAM: OTHMAN, C.J., LUANDA, J.A. And MMillA, J.A.) CRIMINAL APPEAL NO. 206 OF 2012 ! JUMANNE JUMA BOSCO I MOHAMEDJUMANNE ' ..................................................... APPELLANTS VERSUS. !. THE REPUBLIC ................. !••······································ ............... RESPON(?ENT (Appeal from the Judgment of the High Court of Tanzania atArusha) (Mwarija, J.) dated the 24 th day of August, •2012 in · . Criminal Appeal No. 31 of 2008 JUDGMENT OF THE COURT 22 nd November, 2013 &25 th April, 2016. OTHMAN, C.J.: ~ - . - The Appellants were arraigned with and convicted of the offence of attempted murder c/s 2ll(a) of the Penal Code, Cap 16" R.E. 2002 by the High Court (Mwarija, J.) at Arusha on 24/8/2012. They were each sentenced to a term of fifteen years imprisonment and ordered to pay 1

Tz. Shs -400,000/= as compensation· to PW1 (Hando Nina@Peter). · Aggrieved by the conviction and sentence they have lodged this appeal. Briefly stated, the pro.secution case was that o_n 27/9/2007 at 6 pm, while PWl was on his way to buy_ cigarettes with PW3 (Emmanuel Lucas) he was attacked· and stabbed with a knife by the 1 st Appellant. PW1 suffered a penetrating wound on his abdomen (Exh. P.1). An earlier attempt by the 1 st Appellant to hit PWl on the head with a club had failed as he had grabbed it in time. The 2 nd Appellant however forcefully took it· away from him. The Appellants· fled on a bicycle when PWl raised an alarm. The Appellants yvere known to PWl and PW2. They all came from· the same; Village (i.e Qash). Responding to PWl's call for aid, PW2 (Petro Daniel) the Hamlet _____ Chairl'l]an met the Appellants on the way, riding a bicycle. PW2 gave PWl first aid by returning his intestines which were out, back into his stomach .. PWl named the Appellants to the police on the same day of the incident (PW4, DC Donald). The 1 st Appellant was arrested at his house, 7 kins. away from the· scene of the crime. The 2 nd Appellant was arrested at · . . Babati Bus starid, 40 kms. away from Qash Village, on 29/9/2007. 2 •

. · The 1 st and 2 nd Appellant~,: who· are father :and . son, denied involvement. Raising an alibi,. they both claimed to have been at the 1 st Appellant's house at the time of the incident. This was supported by DW3 · (Mwanaisha Juma), the 1 st Appellant's daughter .. The 1 st Appellant further alleged that. he had grudges. with Lucas Bunge, PWl 's brother over a boundary between their farms. The Appellants also testified that the 2 nd Appellant had previously been charged with the offence of rape against Lucas Bunge's daughter, Ba.silisus Lucas. The prosecution witnesses, they urged, ·had been couched by Lucas Bunge. The 1 st Assessor opined that there was sufficient light for the Appellants to have been identified beyond reasonable doubt by PWi, PW2 · . ~ " . and PW3. The 2 nd Assessor reasoned that the .. Appellants had not complained anywhere that they had been framed up in this case. The 3 rd . . Assessor opined that the Appellants ha9 intended to· kill PWL All the three Assessors found the Appellants guilty as charged. The High COurt held that the Appellants were properly identified by PW1 and PWl who were credible. That they collaborated in attacking PWl and had acted with a common intention of mu~dering him. It was satisfied . . that t_he Appellants had intended to· unlawfully kill PWL There was no 3

I I merit, it found, that the case was a frame-up.· It held that the chbrge · . . . I against them had been. proved beyond reasonable doubt by. the ··prosecution. i At the hearing of the Appeal, the Appellants were represented by Mr. I Edmund Ngemela, learned counsel. The Respondent Republic, · vJ,hich · . . I . ! :. opposed the appeal ·was represented by Ms. Elizabeth Swai, learned State I . i Attorney. [_ Ground one ... of the Appeal faults the learned trial Judge for proceeding on a defective information. ! i I Mr. Ngemela vehemently suomitted that the information forj 1 the offence of attempted murderC;s 211(a) of the Penal Code was incu 1 ably defective as it did not specify in the PARTICULARS OF PFF.ENCE, the lord . "unlawful", an essential ingredient of the offence of ttmpted murdef. As I the Appellants did not know what charge they were facing, the omission occasioned a failure of justice, which could not be cured under section· 388 · of the Criminal Procedure Act, Cap 20 R.E. 2002. He relied on Terrah Mukinda VR (1966) E.A. 425. Furthermore, Mr. Ngemela faulted the information as it did not contain the Appellants' descriptions such as their age, address and places 4

·• i i . ! . . _of abode as was required under Section 135 ( d) of.the Criminal Proce~ure . . . . . . i Act. I I I i

• • • . I - Resisting, Ms. Swai ·acknowledged that the·words ''unlawful" were\ not i I .. spelt out in the PARTICULARS OF OFFENCE. However, she. succiCtly. ! i submitted that the words that were used,. ·"attempt to· murder" were i sufficient to characteriz the offence, as the word "murder 11 , defined in ! I section 196 of the Penal Code encompassed an "unlawful 11 act that ca0ses ! i I death. That in any event, the defect was curable under section 388 of!the I . I Penal Code as the Appellants were put on -notice of the offence that tihey . • . . I . ! . . ! were charged with by the information and no injustice was occasionec;j to I . . I ! them. On the non-compliance with section 135(d) of the Crinilnal · . . . . . . . . . . . ! .. . I· . • . . I · Procedure Act, MsSwai submitted that the Appellants' names had provided·_ . . . . . i a proper description of who they actually were. They hd no-t been deied .
• l any right as they were physically present ·at the preliminary hearing and at the trial. It is trite that a charge or information should pe read as a composite whole. Section 132 of the Criminal Procedure Act requires a charge or . . . information to contain a statement of the specific offence or offences with which the accus_ed person is· charged, together with such particular~ as· may be necessary for giving reasonable information ·as to the nature of the .s

• offence charged. A charge is sufficient when· it does so. The information preferred· against the Appellants on 19/6/2008 ·was . read __ : to them on · 20/10/2008 before the commencement of the preliminary hearing and they were reminded of it _again, on .10/8/2012, before the prosecution case. opened. For clarity, we think we should reproduce the essential parts of the · information at issue: ''STATEMENT OF OFFENCE . An-EMPT TO MURDER/ contrary to section 211(a) of the:Penal Code,- Cap 16 of the Laws/ Revised Edition 2002. PAR°TiCULARS OF OFFENCE JUMANNEJUMA @Bosco·and MOHAMED JUMANN/3 ✓ on or about the 2:fh day of Septembe0

2007 at Endandoshi Qash Village within Baba ti DistricC. Manyara Region jointly and together did attempt to murder one HANDO NINA @ Peter. Filed at Arusha this 1 !Jh day of June/ 2008 STA TE~ TTORNEY" (Emphasis added) Having carefully considered the record and . in particular. the information we are of the settled view that the omission to spell out the · 6

. \Nord5 "unlawful" in the PARTICULARS. OF,OFf.ENCE di9 not_rnder it fatally-·. . . .• ... ; .. ·, ' . .. . defctive. The STATEMENT· OF OFFENCE clearly spelt out: that the· · Appellants were facing a charge of attempted. murder c/s 211 (a) of -the . . . .. . ; . Penal Code. Therein any · person who attempts unlawfully to cause the death of another is guilty of the offence of attempted murder. Attempt is defined in section 380(1) of the Penal Code, thus: ' ' ' 380(1) "when a person intending to commit an··offence, begins to put his intention into execution by means adopted to its fulfilment and his intentio(J by some ov_ert act but does not fulfil his intention to such extend as to commit the offence, he is deemed to attempt to commit .. . ' the offence'~ · Furthermore, section 135 (a)(iii) of. the Penal. Code. requires the PARTICULARS OF OFFENCE to be set· out in ordinary· language, in which the use of technical terms shall not always be necessary. The expression used in this case and in plain language, that the Appellants jointly and· together did "attempt to kill",. one HANDO N1NA @Peter read in their entire context were adequate to render the information sufficient under section 132 of the Criminal Procedure Act. 7

In our view, Mukinda's case- is distinguishable as It dealt with the o°ffence of obtaining money by false pretenses contrary to S.31 of the Penal Code (Kenya) and not the offence of attempted murder c/s 211(a) of our . Penal Code, offences that have different ingredients· and which are . different al_l together. __ Moreover, the· Appellants' names referred to who· they were, a fact that was not in dispute throughout the trial. In the circumstances, their actual names in the information were a sufficient description of who they were. To say the least,_ thE=y wre described by their actual names. That apart, we are fortified by the view we take having regard also to the proforma for an information for attempted murder, in ARCHBOLD, Criminal Pleadings, Evidence and Practice, 34 th Ed., 1954 para. 2577), whose relevant parts we recite: 0 INFORMATION Attempt .. to .. murde contrary to.................................................................. ~ ................... . PARTICULARS OF OFFENCE 8

AB, ·on the .::-.i.:.:: .. : .. day of. .... :: ...... :· .. :., in -the county of ·....................... , .. , attempted to ·murder_ . JN, by (describe the· act": in ·ordinary language)!~ .(Emphasis added) . ... In the result, and considering what we have· observed earlfer, the alleged omissions . in the -- information aiso did not occasion any failure of justice in terms of section 388 of the Criminal Procedure Act. On the· information preferred and well before the trial commenced, the Appellants knew the essence and substance of the offence they. were required .to face at the trial. We find no merit in ground one of the appeal. The complaint in ground two of the appeal .is that the. High Court erred in law in admitting and acting on PWl's PF3 Form (Exh. P.1) contrary to section 291(3) of the. Criminal Procedure Act. Mr. Ngemela submitted that notwithstanding the non-objection by the Appellants' learned Advocate at the trial to the tendering of the PF3 Form, the trial court was required to inform the Appellants of their right to hav~ the medical officer who prepared it to be summ_onced by the Court for cross"'.examination. He relied on Sprian Justine Tarimo V.R, Criminal Appeal No 226 of 2007 (CAT; unreported). In view of that alleged defect, Mr. ·Ngamela left it to the Court to order a retrial, if the justice of the case warranted. . . 9

I I On her part, Ms. Swai luddly submitted that. the High Court ad I complied with section 291(3) of the Criminal Procedure Act. The PF3 Fbrm • . . . I . (Exh P.1) was tendered by PW1 without any objection by t:he Appell)nts' I l I learned Advocate. As an officer of the court, he was not only require to I ! assist it, but he was also under section 291(3), free to request the Cou1 to i summon the medical officer for cross-examination, which he did not :apt ._ i for. Moreover, as the PF 3 Form (Exh P.1) was in the Appellants' hainds i from the date of the preliminary hearing, on 20/10/2608, a long time go, . . I it meant they were. satisfied with its contents. ! - . I i The record is silent whether or not the learned Judge informed lthe I . . i Appellants of their right to.· require ·the. medical- office who prepared [the · PF3 Form to be summoned for cross'."° examination as was required u~der · I i i section 291(3). When the PF3 Form was tendered by PW1, the Appella!nts' . . . . . I learned counsel told the Court, that the defence had no objection. Indeed, ' if he had objection, the learned Judge would have made good the probable • I omission. Considering that the Appellants had leg_al .representation; the non- :objection by the defence to the admission of the PF· 3 Form when • an _opportunity arose at the trial; the fact that they were aware of its content from 20/10/2008 and PWl only sought to tender it on 10/8/2012, a period 10

over three years and. nine months_ and the option the: Appellants' learned· Advocate had ·under section . 291(3) of th~ Criminal Proedure Act· to request the Court to summon or make available the medical officer for cross-examination, which- possibly he choose not to seize nd applying section 388 of the Criminal Procdure Act, we are of the settled view that no failure of justice was occasioned in any manner. in the trial court's admission and reliance on the PF3 Form. (See, Bahati Makeja V.R, Criminal Appeal No. 118 of 2006 (CAT, unreported). That aside, on the· proved facts of this case; even if we were inclined . to expunge the PF3 Form from the record, the nature and extent of the serious bodily injuries inflicted by a knife and susained by PWl on · his stomach was abundantly- proved by the-evidence of PWl, PW2 and PW3, which was held credible by the trial court. As a matter of fact, PW3. was 3 paces away. With respect, ground two of the appeal has no merit. At its core, ground three of the appeal, submitted in the alternative, faults the learned Judge for hot considering the Appellants' alibi, notice of which was duly given to the prosecution under section 194( 4) of the Criminal Procedure Act. Mr. N_gemela acknowledged that the learned Judge had. referred to the alibi in his analysis of- the evidence. However, he complained that by not arriving to any co~clusion on it, the High Court had 11

'. erred. That as it was incumbent on it to make a condusion, a· task it failed . . . to perform, this Court could · not step into· its· shoes as 1t would. be taking over a burden that· rested· on the former Court,· which had .original jurisdiction on the matter. He relied on Hussein Idd and Another V.R (1986) T.L.R. 167 (CAT). were the. Court held that it was a serious misdirection on the part of the trial Judge to deal with the prosecution case . . on its own and arrive at the conclusion that it was true and credible without considering the defence evidence. Responding,, Ms. Swai submitted that the Appellants' alibi was fully analysed in the trial Court's Judgment. That it would have been wise for the learned Judge to have made a specific finding on it, but as he had considered the Appellants' defence as a· whole, and had concluded that it· . had no merit, no faultwas committed. Going by the record, on 10/8/2012 the Appellants gave notice to the prosecution and the Court of their intention to rely upon an alibi under section 194(4). To this effect, in their defence the Appellants, supported by DW3 gave evidence that they were in DW1's house at Qash Hamlet from 4 pm on 27/9/2007 to 29/09/2007. PW1 was attacked and stabed at 6 pm on 27/9/2007, at Endadosh Hamlet, 7 kms from DW1's, house. It was PW1 and · PW3's evidence that they had identified the Appellants at the scene of · 12

, crime. PW2 said he saw. them riding a bicycle when he was. responding to

• ~ ' , ' . . ... . ~ PWl's alarm. We would agree with both Mr. Ngemela· and Ms. Swai that in the Judgment, the learned Judge analysed the prosecution and the defence· evidence fully including the Appellants' alibi (page 63). However,· with respect, he made no finding or conclusion on it as required by law; Given . the available prosecution and defence evidence, respectively, on the Appellants' identification and alibi, which were clearly opposed to each other, that evidence had to be resolved by the triI Court. Incompatible, the evidence was to have been settled by a definite finding or conclusion. As stated by the Court in Kavina Ntakimazi V.R, Criminal Appeal No. 52. ,. of 1992 (CAT, unreported) in essence the defence of alibi means that the. · accused cannot commit the offence because at that time,. he was away in a . different place from the scene of the crime. The law is well established that on first appeal, the Court is entitled to re-evaluate and re-appraise. the evidence, to determine wheher qr not the .triI court had erred in. its approach to evaluating th evidence or had acted on a wrong . principle and to come to . its qwn . conc;lusion (See; Hassan MzeeMfaume V.R. (1981) TLR 167; lax:minarayan _' and Another v. Returning Officer and Others (1947) I S.C.R. 822). This is 13

not a question of the Court taking over .the trial Court's original jurisdJion . i.

• I . . . . . I as strenuously argued· by Mr. Ngemela, but a duty incumbent -- on a first . I I I appellate Court. 1 I I i I That apart, Hussein Idd's case .is of no assistance to the Appella!nts. . ! i _ In this case, the learned Judge had analysed fully the prosecution 6nd ! . [- - defence evidence, while in the former case the trial Court had dealt With·· I i i the prosecution evidence on its own and had not considered the defnce . . . I : !. . . . . . i evidence. Moreover, · here the learned Judge having considered the wtilole evidence, arrived at a conclusion that one of the allegations by the , I defence, that involving misunderstanding and grudges between !the I I . I Appellants and PW1 had no nierit. As we have eluded to earlier, it was lthe . . I ! finding on the alibithat went amiss in the High Courts' Judgment. · i I . - . . I The law is well settled that where an accused person puts forward an I I ' alibi as an answer to a charge or -information, he does not thereby assume . ' a burden of proving the defence and the burden of proving his guilt beyond reasonable doubt remains throughout on the prosecution (See, Sekitoleko V Uganda (1967) E.A. 531 at 533; leornard Aniseth V.R. (1963) EA 206; Saidi s/ o Mwakawang VR (1963) E.A 6). It is sufficient that an alibi raises a reasonable doubt (See, Al.i Salehe Msutu V.R. (1980) T.L.R.1). 14

. .. I

• I Having re-appraised the entire evidence; we are-of the decided vliew, as was the 0pinion of the learned Judge and the 1 st Assessor thatl 1 the · Appellants were positively identified at the scene of the Crime. The inci : ent -- I took place at 6pm. PW1 and PW2 knew the Appellants before. They all • • . I l l lived in Qash Village, although in different Hamlets. The former reside~ at ; Endadosh Hamlet and the later at Qash Hamlet. PW2 was 3 paces array i i when PW1 was stabbed. Both PW1 and PW2 gave oncordant descrip_ve I particulars of the colours of what the Appellants wore. The Appellants ifled i . . . I on a bicycle when PW1 called for help. PW2 who responded to PWl's allarm I met the Appellants on the way, !'idding a bicycle. He also knew t~em i i before the event. The trial Court found these witnesses credible, and tthere is no cause for us tp hold otherwise. The factors for identification Jere·. i ! favourable and rendered it watertight with no possibility of mistaken . I identification (See,. Waziri Amani V.R. (1980) T.'L.R. 250); Igola Ig4na . and Noni@Dindai Mabina V.R., Criminal Appeal No. 34 of 2001 (¢AT, unreported)). Having regard to the totality of the evidence, we find that the alibi raises no reasonable doubt. The prosecution had proved the case beyond. reasonable doubt that the· Appellants were at the scene of the crime at the material time and had jointly participated in attempting to · 15

.. unlawfully murder .PWL All considered, ground three of the appeal has no " merit .. In the result and for the foregoing reasons, we uphold the conviction, sentence and order· of compensation imposed by the High Court. The appeal having no _merit, is hereby dismissed.· DATED at ARUSHA this 11 th of February, 2014. M. C. OTHMAN CHIEF JUSTICE B. M. LUANDA JU.STICE Q_E AP-P-EA · ·.s. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy· of the original. ,[~ <..~ · J. R. KAHYOZA REGISTRAR COURT OF APPEAL • 16