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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 7609 OF 2024 (Originating from the District Court of Momba at Chapwa in Criminal Case No. 138 of 2023) MUSA HELI SIAME………………….………………...……...APPELANT VERSUS THE REPUBLIC…...……………………..…………….…. RESPONDENT JUDGMENT Date: 11 September 2024 & 15 November 2024 SINDA, J.: The appellant was charged and convicted of the offence of maim contrary to section 222 of the Penal Code, Cap 16 R.E 2022 (the Penal Code). The District Court of Momba at Chapwa (the Trial Court) convicted the appellant and sentenced him to serve life imprisonment. It was alleged that the appellant on 29 May 2023 during night at Masele area, Mpemba ward within Momba District and Songwe Region did an act 1 which disfigured one Agness d/o Headmaster (the Victim) by injuring her on different parts of her body and cut off her left foot thumb by using sharp object. It was the prosecution evidence that on the material day the appellant beat the Victim with a spade on several parts of her body and cut her left limb thumb using a spade. The appellant on his side denied to committing the offence. At the end of hearing the Trial Court found that the offence was proved to the required standard. Against that decision, the appellant appeals on a number of grounds as follows: 1. That the trial court erred in law when convicted and sentenced the appellant without taking into account that the evidence of Pw1 and Pw3 failed to be corroborated by the physical weapon to wit spade which were never tendered to proof the same at the trial court. 2. That the trial court erred in law when convicted and sentenced the appellant without regarding that the charge sheet and the provision of law which the appellant was charged was far different from the particulars of the offence: 2 a) None of the proceedings shows that the said cut toe was showed to the trial court and seen by the trial magistrate and recorded the same inside the proceedings. b) The said bodaboda who transported Pw1 to her family was not called to proof the same. c) The evidence of Pw3 was doubtful as she was not sleeping in the room of Pw1 and DW1. d) As per evidence of Pw1 this means there were heavy fracas in the said area but none of the neighbour or leader of the said place heard the said fracas. Pw3 did not notify the nearby neighbour or the leader. 3. That the trial court erred in law when convicted and sentenced the appellant without taking into account that as per the evidence of Pw1, Pw1 and the appellant were owning club which sells liquor and themselves were drinking the said alcohol every day and were too drunk during the commission of such crime, to convict the appellant to life imprisonment for causing grievous harm is an excessive sentence against MSA cap 90 RE 2022. 3 4. That the trial court erred in law when convicted and sentenced the appellant relying on the family member witness Pw1,Pw2,Pw3,Pw4 as none of out this family members called to proof the same. 5. That the defence of the appellant was ignored by the trial court. 6. That the lower court erred in law to rely on PI (PF3) and the evidence of Pw1 and Pw2 while in their evidence there is no place stated that they went to police to take the said PF3 hence the P1 is totally an after thought. 7. That ELIA SIYAME and FRED SIYAME who took the victim (PW1) to Vwawa Hospital (Seen in the Pw2’s evidence) were not brought before the trial court to support this piece of evidence. 8. That the trial court erred in law to convict and sentenced the appellant relying heavily on inconsistency evidence of Pw1 and Pw3 while Pw1 stated the appellant slapped Pw3 stated was beaten twice with spade on her head hence this is doubtful evidence. 9. That the trial court erred in law when convicted and sentenced the appellant basing on uncorroborated evidence of Pw1 and PW3. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent was represented by Mr. Ignas Urban, learned State Attorney. 4 The appellant requested the court to consider his grounds in the petition of appeal as presented in the court and reserved his right to make rejoinder if any. In relation to the first ground of appeal, Mr. Ignas submitted that as per the judgement and the proceedings of the Trial Court (the Proceedings) the spade was never brought in court. He referred to the case of Mashaka Juma @ Mtatula vs. R, Criminal Appeal No. 140 of 2022 (unreported) where the Court of Appeal of Tanzania (the CAT) stated that failure to tender those objects did not render or did not mean that the witness who testified on such exhibit were not credible. He argued that although the exhibit was not brought, the witnesses PW1 and PW3 explained on how the incident occurred as revealed in the Proceedings. Also, PW3 stated that she saw the appellant with a spade at the scene of crime. PW3 further stated at paragraph 1 of page 16 of the Proceedings that after that he pulled mum to the living room and started to hit her with a spade. Further, that PW5, tendered PF3 which was not objected by the appellant as shown on page 25 of the Proceedings. 5 Regarding the second ground, he contended that the appellant was charged with offence of maim contrary to section 222 of the Penal Code which states that: any person who, with intent to maim, disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the lawful arrest or detention of any person is guilty of an offence, and liable to imprisonment for life. He argued that the Trial Court explained the offence as per the charge sheet on page one of the judgement that the accused before the court is arraigned for the offence of maim contrary to section 222 of the Penal Code. The particular of the offence in the charge sheet states that the accused Musa Heli Siame is charged on the 29 May 2023 during night time at Masele Area at Mpemba Ward, injured his wife on different parts of her body and cut off her left foot thumb by using a sharp object. He added that the particulars of the offence and the charge sheet are clear and made the appellant to understand the charge before him and to defend himself in accordance to section 132 of the Criminal Procedure Act, RE 2022 (the CPA). Mr. Ignas further agreed that in the Proceedings the cut toe was not shown in Trial Court and records. However, in the judgment at page 9 6 paragraph 1, the trial magistrate stated that he saw and observed PW1 who showed her stitched leg which had a bandage on the big toe to demonstrate that she was under medical care. Mr. Ignas further maintained that the bodaboda who transported PW1 to her family was not called as a witness because PW1 proved on the same. The counsel for the respondent argued that PW3 was at home when the incident happened. PW3 saw and heard the appellant attacking PW1. This was testified by PW3 at page 16 paragraph 1 of the Proceeding and by PW1 at page 10 paragraph 2 of the Proceedings. He continued that the appellant did not cross examine PW3 on this issue that she was not in the room of PW1 and the appellant. The failure to cross examine a witness means he agreed with what she has said. Also, at page 10 and 11 of the Proceedings, PW1 stated why she did not make noise to alert the neighbours because the appellant threated them not to make any noise. On ground number three, he submitted that the Proceedings do not show that PW1 and the appellant were drunk when the incident occurred. He added that at page 10 of the Proceedings, PW1 stated that the appellant was not drunk. Further on pages 31 and 32 of the Proceedings, in his defence the appellant didn't say that he was drunk and the sentence is according to section 222 of the Penal Code. 7 With respect to the fourth ground, Mr. Ignas stated that all the witnesses were credible. He added that PW5 provided his testimony and was not a family member. Regarding the fifth ground that the defence of the appellant was ignored by the Trial Court. He submitted that at page 9 paragraph 3 of the trial court judgement, the magistrate summarized the defence of the appellant and DW2. That, the magistrate found that the defence of DW2 was hearsay. Therefore, the appellant defence was considered. On the sixth ground that the Trial Court relied on PE1 (PF3) while in the Proceedings it is not shown that PW1 and PW2 went to the police to take PF3. He submitted that the PF3 is in the custodian of the police as per the Police General Order 170. The PF3 was tendered in court by the doctor (PW5). That, at page 24 of the Proceeding shows that PW1 and PW2 went to the hospital. He added that a doctor cannot attend someone without a PF3. He further submitted that the appellant never questioned when the PF3 was tendered in court. On the seventh ground, that Elia Siyame and Fred Siyame who took PW1 to Vwawa Hospital were not brought in court to testify. He submitted that it is clear that as stated by PW2 that Elia and Fred took PW1 to the hospital. Therefore, there was no need to bring many witnesses to explain 8 on the same issue. He further contended that section 143 of the Evidence Act, Cap 6. R.E 2022 (the TEA) explains on the issue and for the prosecution these were immaterial witnesses. On the eighth ground that the evidence of PW1 and PW3 was inconsistency. That, PW1 stated that the appellant slapped PW3 while PW3 stated she was beaten twice with a spade on her face. He submitted that this shows that PW3 was beaten. PW1 stated in her testimony how she was beaten by the appellant using a spade. PW3 in her testimony, stated how she witnessed the incident. The Trial Court convicted the appellant basing on the whole evidence. On the last ground that the evidence of PW1 and PW3 were uncorroborated. He reiterated his submission on ground number eight. In rejoinder the appellant reiterated his ground of appeal and prayed his appeal to be considered. I have considered the court records, grounds of appeal and submission made by the parties. I find the appeal can be disposed under one issue of whether this case was proved by prosecution to the required standard at the Trial Court. 9 It is a position of law that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in several occasions insisted on that. In the case of Mohamed Haruna@ Mtupeni & Another vs. Republic, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” Now discussing the above issue of whether this case was proved by prosecution to the required standard at the trial court, this court being the first appellate court I wish to evaluate evidence on record afresh. In this case, the appellant was charged with offence of maim contrary to section 222 of the Penal Code which provides that: “Any person who, with intent to maim, disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the lawful arrest or detention of any person- (a) unlawfully wounds or does any grievous harm to any person by any means whatsoever; 10 (b) unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife or other dangerous or offensive weapon is guilty of an offence, and liable to imprisonment for life.” In the particulars of offence, it was stated that the appellant disfigured the victim by injuring on different part of her body and cutoff her left foot thumb by using sharp object. From the prosecution evidence, PW1 stated that the appellant cut her left limb thumb using a spade. PW3 testified that the appellant hit the appellant with a spade but she didn’t state that the appellant cut PW1 left limb thumb with a spade. As per the doctor's evidence (PW5) he stated that the Victim’s thumb toe on the left leg was cut save for a small flesh was holding it. PW5 further stated that he cleaned her wounds and stitched her. In order to prove the offence of maim, two elements need be proved: one, that, the victim lost an organ of the body and two, that, the accused person is responsible for lost organ. In the first part, from the evidence of the prosecution it is not clear that the Victim lost her left thumb toe. From pages 24 and 25 Proceedings, PW5 stated that the Victim’s thumb toe on the left leg was cut save for a 11 small flesh was holding it. PW5 further stated that he cleaned her wounds and stitched her. This makes me believe that the Victim toe was still hanging on the Victim’s leg and PW5 stitched her as explained by PW5 on page 25 of the Proceedings. Further, in the judgement of the trial court at page 9, the trial magistrate stated that he observed the physical observation of the Victim and had a bandage on the big toe to mean she was still under treatment. Also, the Victim did not show the court that she had no big toe on her left leg. As such there is no proof of permanent disfigure or removal of the toe from the Victim’s leg. As, I have discussed above, I think the offence of maim was not proved to the required standard by the prosecution i.e. beyond reasonable doubt. See: Pascal Yoya @ Maganga vs. Republic, Criminal Appeal No. 248 of 2017. The appellant should have alternatively been convicted of the lesser of offence of causing grievous harm contrary to section 225 of the Penal Code which provides that: “Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years.” 12 This is mainly because the available evidence proves the offence of causing grievous harm and not maim. The court of appeal when it was faced with a similar situation in the case of Jaffary Saidi Mwalimu vs. Republic, Criminal Appeal No. 497 of 2019, had this to say: “…Consequently, we allow the appeal and hereby hold that the offence of armed robbery was not proved. The evidence proved theft. We accordingly quash the appellant's conviction for the offence of armed robbery and set aside the sentence meted by the trial court and sustained by the High Court. Instead, we substitute for it with a conviction with the offence of theft contrary to sections 258(1) and 265 of the Penal Code which is a cognate and minor offence to the offence of armed robbery. We accordingly sentence the appellant to serve four (4) years imprisonment and the same takes effect from the date he was first convicted and sentenced by the trial court, that is to say the sentence to be counted to have started from 2/7/2019.” In consequence therefore, the appeal is allowed. I proceed to quash and set aside the conviction and sentence of the Trial Court for the offence of maim. Instead, I substitute for it with a conviction with the offence of causing grievous harm contrary to sections 225 of the Penal Code which is a minor offence to the offence of maim. 13 For that reason, the appellant is sentenced to serve three (3) years imprisonment and the same should take effect from the date he was first incarcerated by the Trial Court, that is on 11 December 2023. It is so ordered. Right of appeal explained. DATED at MBEYA on this 15 day of November 2024. A. A. SINDA JUDGE 14