Sophia Issa Jiwe vs R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 139 OF 2023 (Originating from the conviction and sentence of the District Court of Chemba in Criminal Case No. 38 of 2023) SOPHIA ISSA JIWE..................................................................... APPELLANT VERSUS REPUBLIC RESPONDENT JUDGMENT Date of last Order: 30/5/2024 Date ofJudgment: 31/7/2024 KHALFAN, J. The appellant, Sophia Issa Jiwe was tried and convicted by the district court of Chemba (hereinafter referred to as the trial court) for the offence of causing grievous harm contrary to section 225 of the Penal Code [CAP. 16 R.E 2022]. The allegation which confronted the appellant as stipulated in the particulars of the charge was to the effect that, on 13/5/2023 at Mrijo Chini village within Chemba district in Dodoma region the appellant with intent to maim unlawfully caused grievous harm to Jamila Juma Masale by stabbing her on different parts of her body using punches and kicks. The appellant pleaded not guilty. In attempt to prove the case against the appellant, the prosecution paraded five witnesses and tendered three documentary exhibits. The defence had two witnesses. A brief factual background underlying the instant appeal as could be gathered from the record is that, on the material date, PW1 went to hair salon called Rombo to make her hair. PW1 having done, before she had left the salon, the appellant accompanied by her sister, emerged and entered the salon. The appellant is claimed to have insulted PW1 and later on started kicking her on various parts of her body. PW2 witnessed the incident and being assisted with other people who were at the scene managed to calm the situation. PW1 went to the police where she was issued with a PF3 and then went to Mrijo health centre where she was attended by PW3 but he referred her to Kondoa hospital where she was attended by PW4. PW4 accounted that PW1 had shoulder dislocation. In her defence, the appellant who testified as DW1, denied to have attacked PW1. She narrated that she met PW1 at Rombo salon and it was PW1 who started insulting her and later on poured some water on her. The appellant's evidence was supported by her sister DW2. 2 It is against such background the appellant was arrested, arraigned and subsequently convicted and sentenced to four years' imprisonment. The trial court further ordered the appellant to pay PW1 compensation at the sum of TZS 700,000/=. The appellant was aggrieved with the conviction and sentence meted out against her hence she has preferred the instant appeal with three grounds of appeal as follows: 1. That, the trial court erred in law and in fact by convicting the appellant while the respondent never proved the case beyond reasonable doubt. 2. That, the trial court erred in taw and in fact by considering weak and contradictory evidence adduced by the prosecution. 3. That, the trial court erred in law by failure to consider the defence case. The appeal was disposed of by way of written submissions. The appellant was represented by Mr. Fred Kalonga, learned advocate. The respondent was represented by Ms. Zubeda Lyaumi, learned state attorney. 3 In his submission in support of the appeal, Mr. Kalonga argued jointly the 1st and 2nd grounds of appeal while the 3rd ground was argued separately. In his submission on the 1st and 2nd grounds of appeal, the learned advocate argued that the prosecution did not prove the case against the appellant to the standard required despite calling five witnesses and tendering three exhibits. He submitted that the alleged offence was committed on 13/5/2023 and the victim was taken to the hospital where she was referred to Kibaya Kiteto district hospital in which X-ray pictures were taken on 15/5/2023. The learned advocate for the appellant argued that there is contradiction as to the hospitals in which PW1 was treated. He pointed out that while PW3 testified that PW1 was referred to Kondoa Hospital the documents he wrote show that PW1 was treated at Kiteto Kibaya district hospital. As to PW4 he testified that he wrote the report at the Kondoa Hospital. On further submission the learned advocate argued that the X-ray pictures show the victim is a male while the PW1 is a female. He submitted that the study description is the chest while the victim complained the pain to be on the shoulder. He submitted that, the findings by the doctor as per exhibit Pl have been stamped only and the name or title of the doctor who examined the victim was not disclosed. He argued that the evidence adduced and the exhibits tendered by the prosecution did not prove the offence of grievous harm since the legality of exhibits Pl, P2 and P3 is questionable. The learned advocate argued that the prosecution failed to bring important witnesses, namely, Messes Ibra and Nguri who were present when the appellant attacked PW1. He argued that failure to bring those witnesses entitled the court to draw an adverse inference to the prosecution. To buttress his argument, the learned advocate referred to the case of Aziz Abdallah v. Republic [1991] TLR 71. Submitting on the 3rd ground, the learned advocate argued that the trial court did not consider the evidence adduced by the appellant and her witness. He referred to the case of Hussein Idd and another v. Republic [1986] TLR 283 in which it was held that failure to consider the defence is fatal. The learned advocate therefore urged the court to allow the appeal, the conviction and sentence meted out against the appellant be quashed and set aside. In reply to the 1st and 2nd grounds of appeal, Ms. Lyaumi argued that the prosecution managed to prove the case against the appellant to the standard required. According to her, in order to prove the offence of grievous harm, it must be proved that the victim sustained grievous harm, the harm was caused unlawfully and the accused is the one who caused grievous harm. She argued that the evidence of PW1 proved that the appellant assaulted her on different parts of the body by punches and kicks which caused dislocation of her hand. She argued that PW2's evidence corroborated the evidence of PW1 as the former testified to have seen the appellant attacking PW1. She argued that the evidence of the medical doctor further corroborated the evidence of PW1 as he observed that PWl's right hand was swollen. She argued that since there was no X-ray, PW1 was referred to another hospital. As to the second element, the learned State Attorney argued that, the harm was caused by the unlawful act of the appellant. She submitted that while PW1 was at the salon, she was attacked by the appellant and her sister. As to the third element, the learned State Attorney submitted that the appellant is the one who caused the grievous harm. She pointed out that there is evidence of PW2 who saw the appellant attacking PW1. She 6 submitted that the evidence of PW3 who filled the PF3 is to the effect that, due to the nature of the injury caused to PW1, he could not attend her. She argued that PW1 was referred to Kibaya Kiteto district hospital. She argued that in cross examination PW3 stated that he referred PW1 to Kondoa hospital for X-ray. She pointed out that the contradiction in respect of the hospitals in which PW1 was treated does not go to the root of the matter since that does not negate the fact that the appellant injured PW1. To buttress her argument, she referred the case of Dickson Elia Nsamba Shapwata and another v. Republic, Criminal Appeal No. 92 of 2007 Court of Appeal of Tanzania at Mbeya (unreported). As to the arguments that the prosecution did not call material witnesses, the learned State Attorney argued that there is no particular number of witnesses required to prove a fact in any case. She referred to section 143 of the Evidence Act [CAP. 6 R.E 2022] and the case of Kennedy Owino Onyachi and others v. Republic, Criminal Appeal No. 48 of 2006 [2009] TZCA. As to the 3rd ground of appeal, Ms. Lyaumi argued that the trial court considered the evidence of both the prosecution and the appellant. She pointed out that the appellant was convicted not because of the weakness of her defence but due to the strength of the prosecution evidence. The appellant did not file rejoinder. Having gone through the parties' submissions and the trial court's record, there are two issues for determination, whether the prosecution proved its case to the standard required, which is essentially the appellant's complaint in the 1st and 2nd grounds of appeal, and the second issue is whether the appellant's defence was considered which is essentially the appellant's complaint in the 3rd ground of appeal. The learned advocate for the appellant argued that the case against the appellant was not proved to the standard required for a number of reasons, material witnesses were not called to testify, and there were contradictions as to the hospitals in which PW1 was treated. It is on record that the appellant was charged with causing grievous harm contrary to section 225 of the Penal Code. The said section provides that: "Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years." 8 Grievous harm is defined under section 5 of the Penal Code as: '>1/7/ harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any externa/ or internal organ " In the case of Sebastian Gilbert v. Republic (1970) HCD 281 it was observed that: "As the definition of grievous harm shows, a harm to be classified as grievous 'it must amount to a maim or amount to a dangerous harm." It was the prosecution duty to prove beyond reasonable doubt that the harm sustained by PW1 amounted to a maim or dangerous harm and it was caused by the appellant. I have revisited the evidence on record, PW1 alleged that she was beaten in various parts of her body by the appellant. PW2 claimed to be at the scene of crime, testified that he saw the appellant attacking PW1 but he could not tell exactly the kind of the injuries suffered by PW1. At first PW3 attended PW1 and observed that her hand was swollen 9 henceforth he referred her to Kondoa hospital where she was attended by PW4. At this point I would like to address the contradictions pointed out by the learned advocate for the appellant regarding the hospitals which PW1 was treated. PW1 herself stated that at first, she went to Mrijo health centre but she was referred to Kondoa hospital. This piece of evidence was supported by PW4 who narrated that he attended PW1 at Kondoa hospital. Hence, I do not find any serious contradiction as alleged by the learned advocate. As to whether the offence itself was proved, I will start with the charge itself, it reads as follows on the particulars of the offence: "Sofia Issa Se/eman charged together on 13h day of2023 at Mrijo Chini Village within Chemba District in Dodoma region with intent to maim unlawfully cause grievous harm to JAMILA JUMA MASALE by stabbing her on different parts of her body using punches and kicks" [Emphasis added]. The charge which formulated the basis of the trial against the appellant makes a general statement that the victim was stabbed on different parts of 10 the body using punches and kicks. By simple definition to "stab" is to cause injury either by piercing or thrusting using a sharp pointed weapon such as a knife. It is however on record that there was no any kind of injury observed on PWl's body which was caused by being stabbed. This is a clear statement of PW3 the first medical doctor who attended PW1, that the latter was not bleeding and had no any wound. According to the evidence on record PW4 the second medical doctor who attended PW1 discovered that PW1 had a shoulder dislocation. It follows therefore that there was variation between the charge and the evidence adduced at the trial. While the charge clearly alleged that PW1 was stabbed on different parts of her body, the evidence adduced shows that PW1 suffered shoulder dislocation. In the case of Sylvester Albogast v. The Republic, Criminal Appeal No. 309 of 2015 (unreported) where reference was also made the decision in Leonard Raphael and Another v. Republic, Criminal Appeal No. 4 of 1992 (unreported), the Court of Appeal stated as follows: - "This is not however to say that prosecutors cannot make mistakes in drafting charges. But where there are such mistakes, the law has also provided a solution. The remedy, as suggested by this Court in Leonard Raphael and Another v. The Republic, Criminal Appeal No. 4 of 1992 (unreported) is that: - "Prosecutors and those who preside over criminal trials are reminded that when, as in this case, in the cause of trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions ofsection 234 of the CPA 1985 and have the charge amended in order to bring it in line with the evidence." Therefore, since the prosecution did not amend the charge so as to reflect the evidence on record, the same led to the material difference between the allegation in the particulars of the charge and the evidence in respect of the injury caused to PW1. I am of the settled view that the apparent variation would have necessitated amendment to the charge to bring it in line with the evidence. I am aware that in some instances, the variance between the charge and evidence is curable under section 234 (3) of the Criminal Procedure Act [CAP. 20 R.E 2022]. But this is not the case in the instant matter. The 12 variance between the charge and evidence adduced goes to the root of the matter. Hence, failure to amend the charge eroded the prosecution case. It is unfortunate that the learned trial magistrate did not address this anomaly. Thus, her findings that the offence against the appellant was proved to the standard required, in my view were not supported by the evidence on record. With the brief discussion above, I do not find the need to discuss the second issue. I therefore find the appeal to have merits and the same is allowed. The conviction against the appellant is hereby quashed and the sentence meted out set aside. Equally, the order for compensation is quashed and set aside. The appellant shall forthwith be released unless lawfully held. It is so ordered. Dated at Dodoma this 31st day of July 2024. F. R. KHALFAN JUDGE 31/7/2024 13