IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA DISTRICT REGISTRY) ATTABORA CRIMINAL APPEAL NO. 25 OF 2021 (From the decision of the District Court of Tebora at Tabora, in Criminal Case No. 101 of 2020, before Joctan - RM) 1». APPELLANT THE DIRECTOR OF PUBLIC PROSECUTIONS... VERSUS: MLEKWA S/O MAZYENGE.... ». RESPONDENT JUDGMENT Date of Last Order: 09/11/2022 Date of Judgment: 05/12/2022 KADILU, J. This is an appeal by the Director of Public Prosecutions (DPP) against the decision of the District Court of Tabora in Criminal Case No. 101 of 2020. The DPP was aggrieved by the decision of Hon. Joctan, RM which acquitted the respondent herein. In the District Court, the respondent was charged with common assault contrary to section 240 of the Penal Code, [Cap. 16 R.E. 2019]. Brief facts of the case are that the respondent was alleged to assault one Asha d/o Baraka on the 27% day of November 2019 at Tambukareli area, Ilolangulu Village and Ward within Uyui District-in Tabora region. PW1, Asha d/o Baraka testified that on 27/11/2019, she was at her farm when the respondent came and inquired as to who had permitted PW1to enter into such farm. The respondent then ordered PW1 to leave the place immediately. While PW1 was leaving the farm, the respondent followed her back and hit her on the hand with a hoe and beat her on the face. She fell down while raising an alarm for help. Some people arrived at the scene, including PW1’s mother. The matter was reported to the police station where PW1 was given PF3 and went to Ilolangulu hospital where she was treated and went back home. After two days, she was called to: the police station and informed that her case would be forwarded to Iolangulu primary court. After arriving at Ilolangulu primary court, she was arrested alleged. to have jumped bail in another criminal case which she was facing. She was sentenced to six (6) months imprisonment. After release from the prison, she found the respondent already discharged. Still interested to pursue the matter, she went to Uyui police station to revive her case against the respondent. That was in August, 2020. She was given another PF3 and went to Kitete hospital where she was examined by x-rays. Thereafter, Criminal Case No. 101 of 2020 was filed in the District Court .of Tabora. After full trial, the Magistrate found that the prosecution failed to prove the case against the respondent beyond reasonable doubt, hence acquitted him. Dissatisfied by that decision, the DPP preferred this appeal armed with four grounds of appeal which are paraphrased as hereunder: 2) That, the learned Magistrate erred in law and fact in finding that there was contradiction between the evidence of PW3 and PW6. ii) That, the learned Magistrate erred in-law for failure to evaluate oral and documentary evidence from the prosecution side.ti) That, the learned Magistrate erred in law and fact by. ruling out that the prosecution failed to prove the case beyond reasonable doubt. iv) That, the learned Magistrate erred in law and fact by deciding that evidence of PWi and PW5 was just a.cooked story which could not warrant conviction of the respondent. The Appellant prayed this court to quash and set aside judgment of the trial court and sentence the respondent according to the law. On the day of hearing this appeal, the appellant was represented by Mr. Joseph Makene, State Attorney while the respondent appeared in person, without representation. Mr. Joseph prayed to merge all the four grounds of appeal. He argued that in totality, the prosecution proved the charge against the respondent beyond reasonable doubt. He stated that the trial Magistrate found that medical examination of PW1 did not establish that she suffered some injuries, hence the offence of common assault was not proved. The learned State-Attorney opined that it is not necessary for a victim of common assault to sustain injuries. A mere touching suffices to prove common assault, He said, during the trial in the district court, PW1 testified on the way the respondent had attacked her. He further contended that under the provisions of section 143 of the Evidence Act, [Cap. 6 R.E. 2019], no particular number of witnesses is required in any case to prove any fact. According to him, the trial Magistrate's contention that prosecution evidence was contradictory and that there was no direct evidence incriminating the respondent, has no base.The respondent on his part maintained that he did not commit the alleged offence and that is why the trial Magistrate acquitted him. He narrated that there was a dispute between him and PW1 concerning the farm in question. On the day of incident, it was PW1 who went to the respondent's farm and said the farm was hers. The respondent stated that he reported the matter to the Village leaders and went back to his home, He told the court that he was surprised to be arrested later alleged to have beaten PW1 and break her fingers. He prayed the court to dismiss the appeal. After a careful examination of the petition of appeal, submissions of the learned State Attorney and that of the respondent, it appears to me the crucial issue for determination in this appeal is whether the prosecution proved the case against the respondent beyond reasonable doubt. During the hearing, the learned State Attorney raised a point that the trial Magistrate decided the case without having points for determination, contrary to section 312 (1) of Criminal Procedure Act [Cap. 20 R.E, 2019]. After perusal of the record, I found the issue raised by the trial court was whether the respondent. committed the offence of common assault. The offence of common assault is provided for under section 240 of the Penal Code [Cap. 16 R.E. 2019] which stipulates as follows: "Any person who unlawfully assaults another is guilty of an offence and, if the assault s not committed in circumstancesfor which a greater punishment is provided in this Code, is Hable to imprisonment for one year.” The learned State Attorney told the court that injuries are not necessary in proving common assault, but he did not elaborate the ingredients which constitute common assault. According to Glanville Williams in his Textbook on Criminal Law [1978] at page 36, a defendant who intentionally injures somebody may be convicted of assault, In the present appeal, PW1 claimed that the respondent used a hoe to beat her on the hand and face thereby injuring her fingers. It is om record that PW3, a medical doctor who attended PW1 on the same day of the incident observed that PWi had no any fracture and advised her to go back to the. hospital after three days for observation. PW6, a doctor at Kitete Hospital stated that on 20/11/2020, he attended PW1 and after examination by x-rays, he discovered that two small bones of her two hands were broken. The testimonies by PW3 and PW6 led the trial Magistrate to conclude that prosecution evidence was contradictory. When PW went to Kitete hospital about a year after the alleged assault, she explained to PW6 that she was injured by the respondent in 2019, but she could not be treated at that time bécause she was imprisoned. However, at page 5 of the typed proceedings, PW 1 explained as follows: ".. After two days, I was called to police. I was told that.our case will be forwarded to Wolangulu primary court. When I went to Holangtuty primary court, I was arrested for the reasonthat I had jumped bail in my previous case. I was sentenced to six months imprisonment, but-during the imprisonment, I was treated.” With these. narrations, the trial Magistrate observed at page 4 of the judgment that there was no direct evidence that the respondent assaulted PW1, perhaps, ste was assaulted while in prison. Section 3 (2) (a) of the Evidence Act [Cap. 6 R.E, 2019] provides that a fact is said to be proved in criminal matters. when the court is satisfied by the prosecution beyond reasonable doubt that the fact exists. .In this appeal, I have observed a reasonable doubt in the prosecution evidence against the respondent. The learned state Attorney argued that the presence of injuries is not necessary in proving the offence of common assault. However, throughout the prosecution case, the Republic aimed at proving that PW1 was beaten and injured by the respondent and that is why Pw3 and PW6 were called as witnesses who also tendered documents. The prosecution evidence is surrounded by uncertainties because apart from PW1, none of the prosecution witnesses. was able to show that PW1 was beaten by the respondent. As demonstrated by PW6, even the injuries sustained by PW1 could not be associated with the respondent due to discrepancies between the time of the alleged beating and the day in which treatment was sought. Iam mindful of the principle that in order for the contradictions or inconsistencies in evidence by witnesses to be capable of vitiating theprosecution evidence, such contradictions or inconsistencies must go to the root of the case. This is the stand in a number of Court of Appeal decisions including the case of Dickson Elias Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007, where it was stated: “In evaluating discrepancies, contradictions and omissions, itis undesirable for court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter.” In the present appeal, I have observed that the prosecution evidence at the trial court was full of contradictions and discrepancies. As such, I have no reason to interfere with the findings of the triat court. I therefore concur with the trial Magistrate that the prosecution did not prove the case against the respondent beyond reasonable doubt. I thus dismiss the appeal for lack of merit. Order accordingly. Right of appeal is fully explained. Wes M.i., JUDGE 05/12/2022Judgement delivered on the 5'* Day of December, 2022 in the presence of Alice Thomas, State Attorney and Mr. Mlekwa Mazyenge, the Respondent. KADILU, M. J. JUDGE 05/12/2022.