Mashauri Yohana vs Republic (High Court Criminal Appeal No. 159 of 1999) [2000] TZHC 454 (12 July 2000)

/ MROOO, J. ' IN THE HIGH COURT'OF TATZANIA AT MWJ\NZA APPBLLAT.E JURISDICTION ' HIGH COURT CRIMINAL APPEAL N0.159 OF 1999 (Original Criminal.Case No. 11 of 1999 of the District Court of Musoma District at· Musoina.. Before: B_. R. Mutungi, Bsq. Resident Magistrate).. · MASHAURI YOHANA . e O O e O o o O O O 9 • ♦ O O O o • o O o o o O O O O t APPELLANT (Original Aceused) Versus The Republic •·•·• ••• •·••• ••• • •·• •. e.• •• • 8. •••••• RESPONDENT (Original Prosecutor) JUGMENT The appellant was convicted by the Court of Resident Magistrate. Musoma for the offence of assault causing actual bodily harm, eotra,ry · '' to section 241 of the Penal Coe. ' He was sentenced to imprisonment ft,r two years. •;''Feling aggrieved by the conviction and sentenee, he has appealed to this Cort. His appeal was argued by Mr. Rutaisire, learned advocate, and the respondent 1 Republic was represented by Mr. Kabonde, learned State Attorney. The appellant was said to have assaulted one Kichere Wambura during the night of 1st January, 1999, at a wedding party attende4 by many people. The defence evidence was that Kichere was assaulted (apparently accidentally) by his own elder brother who is said to have fled t,c, an unknown place since the night of the incident. At the trial the only witnesses who testified for the proraeeution were the complainant Kichere, his fD.ther Wambura who wa nt at the wedding party and his you11.ger brother Matiko. The appellant also called two witnesses who appeared not related to him. ,, The Republic did not support the conviction because there ap:peal"s to have been real doubt if it was in' fact the appellant who am:saulted the complainant in the case. In the first place, conside:r-in that

'- the offence waE committed at night and at .a. gathering o.f many , .. people, there was need for evidence on .cond.itions which enabled the witnesses to see clearly and identify·reliably the person who assaulted the complainant. There wap no such eviden<::e~. On.a t tell if there was electric light or a wtck lamp light or moonlight which enabled the people present to see clarly what w~ happening and who did what. In the absence of .such e:viden.ce, onditiona f•r correct identification must be considered-doubtful, Secondly, .. although there was evidence that many people i.-1ere present at the scene one must.wonder why all the prosecution w,itnesses were.immediate relations of the complainMte This point assumea mo-signifieanee when it is considered that the more independent defence witness Mashauri Rashid (DW1) categorically stat_ed that it was tlte elder brother of the complainant who threw a club whieh hit the complainant and that that elder brother disappeared from the village sinee that night. That claim by DW1 MashA.uri Rashi_d does l\ct appear to have I been challenged in cross-exaination, I agree with both Counsel that it is Ul'\Safe to uphold the a.1""w conviction of the appellant, I, therefore,L '· the appeal by quashing the conviction and setting aside the prieox ee:atenee. The appellant .. '.. . ··\·!,· ··.: is to be set free forthwith unless he is held for s•me tther !.awful cause. At Mwanza, . 12/7/2000. ; '------- ., ~ v~~-, ·"· --v (J,, A, MROSO) JUDGE

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• C · Coram: BMoK.Mmilla, DR. . . . ., . '- . 4f, , •·, r-; ,. •For Republic: .. Mr. Kabonde S.'3A. · . ... •., .L.:.. ,, rL:j· Ap:r.ellant: Mr. Rutaisire Adv. Absent.· l f ..,,,_.f't' ,f .·.• ·•. B/ClE:J;"k: ~ 9h_ries. Court: _ Judgment delivered this 12th day of July, 2000 in the pre5E;?Il'"''? ... , of. lar:p.ed !State Attorney Mr. Knboci.e· but iri the ·absenc_e of learned

• • • *,,. • , : ~'~r . ., , "'. , , ~ . t .Counsel Mr. Rutaisire • 1J.. o.: • f :- ,. ·At. Mwan?,a •... j c· , ".-·.,J. : . r .,. .;. (\ • f I' • i"_· ' . . ,..: , ,,., ... ... ·. • I l .. ' .• r './• . II" ............ DISTRICT REGISTRAR ' . .' 1°2/7 i2000 ~· .. .t '. 1··.