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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY V AT MOROGORO CRIMINAL APPEAL NO. 31317 OF 2024 (Arising from the Judgement of the District Court of Morogoro at Morogoro In Criminal Case No. 123 of 2023 delivered on 21^ December 2023) AGNES EPHRAIM SHAYO.... ...1®tAPPELLANT LODRIC SHAYO 2"** APPELLANT SIRIRI SHAYO @ CYRIL ..„3^^ APPELLANT VERSUS REPUBLIC RESPONDENT JUDGEMENT 21/11/2024 & 05/12/2024 KINYAKA3.: Before the District Court of Morogoro at Morogoro, hereinafter the "trial court", the appellants were charged, prosecuted and convicted of the offence of Causing Grievous Harm contrary to section 225 of the Penal Code, Cap. 16 R.E. 2022, hereinafter the "Penal Code". It was alleged by the prosecution at the trial that on 4^^ day of December 2022 at Kihonda Manyuki Area, within Morogoro District in Morogoro Region, the appellants unlawfully assaulted one, Laban Justine Mdoe with panga onto various parts of his body thus 1 ^ caused the said Laban Justin Mdoe to suffer grievous harm. The appellants denied the offence by contending that the victim (PWl) was assaulted by the mob whom they couldn't identify as it was in the middle of the night. At the conclusion of the trial, the trial court was satisfied that the prosecution proved to the hilt the offence under section 241 of the Penal Code and not Causing Grievous Harm under section 225 of the Penal Code. On page 15 of the judgement, the trial court held: ''According to the Xray and the evidence in generai, the offence shouidnotioe Grievous Harm contrary to section 225ofthe Penai Code[Cap. 16 R.E. 2022], rather Assauits Causing Actuai Harm contrary to section 241 ofthe Penai Code[Cap, 16 R.E. 2022]. I proceed to find them guiity for that offence ofAssauit Causing Actuai Grievous Harm contrary to section 241 ofthe Penai Code [Cap. 16 R.E. 2022], and convict them forthwith. Section 312 of the 312 ofthe Criminai Procedure Act,[Cap. 20 R.E. 2022]has t)een compiied with." The trial court sentenced each appellant to serve three years imprisonment in jail. It further ordered each appellant to pay compensation of TZS 4,000,000 to the victim within three years. The appellants were aggrieved by the trial court's conviction and sentence imposed on them. They preferred the following grounds of appeal before this Court: 1. That the District Court erred in law and facts by convicting the appellants contrary to what they were charged henceforth pleaded; 2. That the trial District Court erred in law and facts on convicting the appellants by basing on a weak, and uncorroborated prosecution evidence; 3. That the trial court seriously erred in law and fact by basing Its findings on a case that was not investigated or poorly investigated; 4. That the trial court erred in law and facts by passing a judgement contrary to the dictates of the law; 5. That the trial court erred In law and facts by not considering at all the evidence of the appellants herein; and 6. That the trial court erred in law by ordering compensation to the victim without any quantification on the scales so ordered. When the appeal came for hearing on 21^ November 2024, the appellants were duly represented by Mr. Asifiwe Alinanuswe, learned advocate. The respondent enjoyed the services of Mr. Shabani Kabelwa, learned state attorney. In the appellants' submission In support of the appeal, Mr. Alinanuswe submitted in respect of the first ground of appeal that the trial court committed a serious error in substituting the charged offence of Causing Grievous Harm under section 225 of the Penal Code with the offence under section 241 of the Penal Code at the time of composition of judgement. He reasoned that the trial court acted suo motto and had no power to amend the charge under section 234(1) and (2) (a), and (b) of the Criminal Procedure Act Cap. 20 R.E. 2022, hereafter the "CPA" as the powers are vested on the prosecution. He was of the view that the power of the Court is limited to ordering amendment or alteration of the charge. He contended that the trial court robbed the prosecution of its statutory duty and denied the appellant the right to be informed of the charge, to plead and defend against the same. If the trial court found the evidence did not prove the charged offence, Mr. Alinanuswe argued, the trial court ought to have dismissed the charge and set the appellants at liberty. He relied on the case of Aldan Mhuwa @ Joseph and Another v. R., Criminal Appeal No. 139 of 2014 to argue that failure by the trial court to order amendment of the charge so that the evidence tally with the offence, rendered the charge defective and could not be cured under section 388(1) of the CPA. He proceeded that the offence of Assault Causing Actual Grievous Harm does not exist in the statute books. He submitted that the offence ought to be 'any person who commits an assault occasioning actual bodily harm Is guilty of an offence and liable to imprisonment for five years'. He argued that the law requires an amendment of a charge to be effected before the accused enters his/her defence. Relying on the case of Funo and Others v. Uganda (1967) E.A. 632, he argued that in amending the charge the court should not make a new case other than that which the prosecution brought before the accused. He submitted in support of the second ground that there was no evidence that was tendered by the prosecution indicating that the appeliants assaulted or caused actual grievous harm to the victim. He fauited the triai court for convicting the appellants basing on weak and uncorroborated prosecution evidence. He stated that the incident took place at 23:45 hours when PWl passed the house of Mama Agnes and heard people calling a thief, where he was severely beaten. Relying on the case of Waziri Amani v. R. (1980) TLR 250, he submitted that the prevailing conditions did not support the correct identification as the victim did not state the number of people he saw at the scene of crime, he could not record the beating for half an hour, he did not know the appellants, the quality of light was not stated, and that no other prosecution witness who testified to have been at the crime scene. In support of the third ground, he submitted that though it is the prosecution who knows better the person(s) to present as witness but it was imperative in the criminal case before the trial court for the prosecution to call a police officer who conducted investigation to testify on the nature of the crime scene if there were scrappers, whether there was sufficient light, and corroborate the evidence of the victim. He relied on the case of Shukuru Moshi @ Elimringi v. Republic, Criminal Appeal No. 29 of 2021 where the Court of Appeal emphasized the need to call investigator of the crime. Mr. Alinanuswe submitted for the fourth ground that the judgement of the trial court contravened section 312(1) of the CPA and the case Livingstone V. Uganda (1972) E.A. 196 C.A. for failure to state the points of determination. He added that the judgement was bad in law for substituting the charge resulting in not determining the case that was presented before it. He contended in respect of the fifth ground that the trial court did not consider and analyze the all evidence of the appellants including that of the DW2 who testified that he was not at the scene of crime. Supporting the sixth ground, Mr. Alinanuswe submitted that the order for compensation was illegal as there was no evidence tendered to justify the said award contrary to section 110 of the Evidence Act Cap. 6 R.E. 2022 hereinafter, the"CPA". Relying on the case of Terrah Mukinda v. Republic (1966) E.A. 425 C.A., he added that the victim had an avenue to pursue the right to compensation in civil courts as his injuries were grievous contrary to the requirement that a criminal court is mandated to order compensation only in cases where the victim sustains minor injuries. He argued that a criminal court is not positioned to properly quantify monetary damages which are best achieved in civil courts. He argued further that even if the trial court was positioned to award compensation, the trial court did not meet the conditions prescribed under section 349 of the CPA. He prayed for the Court to quash the decision of the trial court and acquit the appellants. He contended that an order for trial de novomW enable the prosecution to fill in gaps and find more evidence. Mr. Kabelwa opposed the appeal. He submitted against the first ground that though he agree with the principle that the trial court had no mandate to alter a charge but order for amendment of the same, the appellants' advocate misunderstood the provision of section 234 of the CPA with section 300(2) of the CPA. Relying on the case of Robert Ndecho and Another v> R [1951] 18 EACA 171 on page 174, he contended that the trial Court was right to convict the appellants with minor offence under section 300(2) of CPA since the offence of Grievous Harm under section 225 of the Penal Code has same genes and species with the offence of Assaults causing actual bodily harm under section 241 of the Code which has cognate character. He relied on the case of the case of Ali Mohamed Mpanda v. R [1963] EA 296 and argued that for an accused person to be convicted with minor offence, the charged major offence must narrate the facts that constitute the minor offence, and that the greater offence must be related to minor offence and must be of the same category. He added that it was a mere slip of the pen or keyboard or semantic error for the trial magistrate to state the offence under section 241 of the Penal Code as Assaults Causing Grievous Harm instead of Assaults Causing Actual Bodily Harm. Relying on the cases of Issaya Renatus v. Republic [2016] TZCA 218 and John Dickson @ Ngongole v. Republic [2024] TZCA 144, he argued that the error does not render the conviction invalid as before convicting the appellant, the trial magistrate clearly stated the substituted offence. Against the second ground, Mr. Kabelwa stated that there is ample evidence available on records that prove without any doubt that the appellant did assault the victim and the identification was watertight including on page 7 where PWl identified the appellants and stated that on his way, at the house of 1^ appellant, he heard people calling him a thief; that he used to meet the appellants at the place for a long time, and that he knew them. He further added that PWl testified that though it was night, there was good light (electricity light) and that he talked with the appellants half hour explaining to them that he was not a thief. He contended that PWl identified the appellants through identification by recognition and the appellants did not dispute the testimony of PWl on the issue during cross examination and in their defence evidence. He relied in the case of Nyerere Nyegue v. Republic [2012] TZCA 103 to argue that it is trite law that there is no greater evidence than that of the accused who confessed before the court. He submitted against the third ground that failure to call investigator does not render the prosecution case to flop since the investigator was not a material witness nor was required to fill any gap that creates doubts in the prosecution's case. He contended that the nature of the scene of crime was not disputed by the appellants and the issue of presence of scrappers was not the basis of the charge. He argued that the cited case of Shukuru Moshi @ Elimringi (supra) does not make it mandatory for investigator to testify in every criminal case rather it emphasizes on the importance of calling investigator when needed. In respect of the fourth issue, Mr. Kabelwa adopted the respondent's submissions in response to the first ground of appeal and submitted that on page 9 of the judgment, the trial court raised three points for determination which were answered in affirmative. On the fifth issue, he argued that the trial court's judgment considered the defence of appellants while discussing the issues raised. He added that if this Honorable Court finds otherwise, it has powers to step into the shoes of the trial court and consider the defence evidence as held in the case of Oscar Justinian Burugu v. Republic [2020] TZCA 1873. 10 Against the sixth ground, he submitted that the trial court had power to order compensation to the victim as provided under section 31 of the Penal Code and section 348 of the CPA. Regarding the issue of quantification of scale he replied that the trial proceedings and judgment are very clear on the injuries sustained by the victim due to the act done by appellants, and the trial court considered the victim's being incapacitated. He concluded that the trial court was right to order compensation to the victim. He rounded of by praying for the dismissal of the appeal and upholding of the conviction and sentence against the appellants. According to the appellants' grounds in the petition of appeal, and the respective submissions of the parties for and against the appeal, I am set to determine whether the trial court's conviction, sentence and an order for compensation imposed on the appellants are Incorrect at fact and law. I will determine the grounds of appeal as raised by the appellants and in the manner submitted by both parties. The first ground is a complaint that the trial court erred to amend or alter the charge suo moto contrary to section 234(1) and (2)(a), and (b) of the CPA. 11 I have noted from the proceedings of the trial court that nowhere did the trial court amend or alter the charge. The finding of the trial court in the judgment that the appellants are found guilty of the offence under section 241 of the Penal Code did not amount to amendment or alteration of the charge but the court's exercise of its powers under section 300(2) of the CPA. In essence, the trial court is empowered under section 300(2) of the CPA to convict an accused person of a minor offence if the facts proved reduce the offence to a minor offence. Section 300(2) of the CPA provides: 300(2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted ofthe minor offence aithough he was not charged with it Notably, the offence of Assaults Causing Actual Bodily Harm contrary to section 241 of the Penal Code that the appellants were convicted and sentenced, is minor to the offence of Grievous Harm that the appellants were charged with under section 225 of the Penal Code. While a person convicted of the offence of Grievous Harm under section 225 is liable to imprisonment for seven years, the offender of Assaults Causing Actual Bodily Harm under section 241 of the Penal Code is liable to imprisonment for five years. 12 For as long as the Ingredients of the offence under section 241 of the Penal Code were proven, I do not find any reason to fault the trial court in its decision. I have also considered the complaint that the offence named by the Honourable trial Magistrate of Assaults Causing Actual Harm or Assaults Causing Actual Grievous Harm does not exist. Indeed, on page 15 of the judgement, the trial court found the appellants guilty of an offence of Assaults Causing Actual Grievous Harm contrary to section 241 of the Penal Code. Though there was such an error, I find that the same was immaterial for as long as the Honourable trial Magistrate correctly cited the provision of section 241 under which the offence of Assaults Causing Actual Bodily Harm is charged. My above findings are buttressed by the fact that even the appellants did not state in their submissions in support of the ground, the manner in which the error in naming the offence under section 241 of the Penal Code prejudiced them. I find no merit in the first ground of appeal and I dismiss the same. 13 The second ground is a complaint that the conviction was based on weak and uncorroborated evidence. It was the appellants' submission that the conditions did not support correct identification. I have considered the ground in line with the testimony of PWl on page 7 of the proceedings. PWl's testimony was that he knew the appellants whom he used to meet for long time. He testified that on the date of the incident, there was good electricity light and talked with the appellants for half an hour before they assaulted him. On page 8 of the typed proceedings, PWl testified when cross examined, that he was living together with the appellants at Klhonda Manyuki area. He stated further that there was sufficient light at the crime scene. PW2 also identified the appellants and testified on page 9 that the crime was committed at the house of the appellant and there was light and she was waited and taken by the 2"" and 3'" appellants to the crime scene. PW3 also Identified the 1=* appellant whom he knew before. The 1^ appellant(DWl) testified to have seen the victim touching the motor vehicle at her home, shouted and witnessed the victim bleeding after being injured at her home. All the same, PWl testified as reflected on page 7 of the typed proceedings that he heard people calling him a thief. However, he informed the trial court 14 that he was inside the premises of the appeiiant, he sat down for safety and introduced himseif, but ali the appeiiants started to beat him where the 1^ appellant held an iron bar and the 2"'' and 3''' appellants held bush knives (panga). Again, page 9 of the proceedings reflects the testimony of PW2. PW2 identified the 2"'' and appeiiants at the dock and informed the trial court that he found them at the crime scene with bush knives that were shading blood. It was the 2"^ and 3'''' appellants who received PW3 and took her to the crime scene after the 3'''' appeiiant called her via her husband's phone. She testified that she asked the 1=*, 2"" and 3'" appeiiants to take her husband (PWl)to the hospital but the appellant refused. PW3, the chairperson of Maendeleo street informed the trial court as reflected on page 11 through to 12 of the proceedings that he knew the 1^ appeiiant whom they used to meet in the general meetings. He informed the trial court that he found the victim at the 1^ appellant's house bleeding and the l®' appeiiant informed him that it was his sons who injured the victim after they saw the victim passing. PW2 reiterated the testimony even when he was cross examined by the 1^ and 2"'' appeiiants. 15 From the above evidence of the prosecution witnesses, I find the contention by the appellants that the trial court's conviction was based on weak and uncorroborated evidence and weak identification of the appellants, unmerited. I dismiss the second ground of appeal. The third ground is an attack to the trial court for basing its findings on a case that was not investigated or poorly investigated. The learned counsel for the appellant expounded his complaint relying on the contention that the investigator of the case was not called to testify before the trial court. I agree that in criminal trials, the evidence from the investigator of the case file Is important in establishing as to how the appellants were linked with the commission of the offence [See the case of Markbruno Zacharia and 2 Others v. Republic, Criminal Appeal No. 30 of 2023 [2024] TZCA 434(11 June 2024)]. I understand that the law is settled that a material witness is the one whose evidence is crucial In explaining missing links in the prosecution's case [See the case of Martin Jacob Mlila v. Republic, Criminal Appeal No. 434 of 2021 [2024] TZCA 447(11 June 2024) on page 17]. 16 However, contrary to the appellants' submissions, it Is my considered position that the absence of such evidence does not necessarily lead to a conclusion that a criminal case has not been investigated or was poorly investigated. I have examined the trial court's records in relation to the appellants' complaint and the authority I have cited above. Admittedly, I have no hesitation in holding that there are no gaps in the prosecution's case that would have necessitated the summoning of the said investigator of the case. On that regard, I agree with Mr. Kabelwa that in the circumstances of this case, the investigator was not a material witness and his absence did not affect the prosecution's case. My position is based on the fact that the testimonies by PWl, PW2 and PW3 were sufficient to prove the offence the appellants were convicted of. Regarding whether there were scrappers, no evidence has been adduced, even by the defence witnesses that the victim was found with scrappers. It was DWl who testified that there were scrappers in the motor vehicle parked at her home. Again, the offence that the appellants were charged with, did not require proof of presence of crappers at the crime scene. 17 Based on the evidence of PWl, PW2 and PW3, the evidence before the triai was sufficient to sustain conviction. It without question that the absence of the evidence of the investigator did not affect the prosecution's case. I dismiss the third ground for lack of merit. I do not find merit in the fourth ground of appeal on the appellants'complaint that the judgement of the trial court is contrary to the dictates of the law for failure to state the points of determination and the trial court's alleged amendment of the charge suo moto. I have held above that the trial court did not amend or substitute the charge but invoked the powers bestowed upon it under section 300(2) of the CPA. On the points of determination, the point of determination is found on page 14 of the judgement where the triai court raised an issue for determination as to"whether the case at hand was proved to the standard required by the lav\/'. I dismiss the ground for lack of merit. The fifth ground faults the trial court for not considering the evidence of the appellants at all. In answering the ground, I found the reasoning of the triai court on page 15 relevant. The trial court held: '7 had time to examine the evidence doseiy. I have considered the final submissions of the both parties. The evidence is ioud that the victim moved near or to the house of the accused 18 "=b»- person. accused was harsh and made a cry of thief. The evidence is dear that accused person formed a criminal intention in that course and she moved to execute her plains straightaway. Ithink she acted unreasonably. She had a chance to report to local leadership, insteadshe decided to take the iaw to her own hands and proceed to teach a lesson in revenge of mere thoughts of what happened previous. DW2and DW3 were at the scene and heard what their mother was shouting. accused had no justification to do what she did. She acted barbaric way!. In whateversituation aiiaccusedperson are notexpected to take iaw to their hands, ifthey do so, the way it was done in this case, they become criminals iike any other criminals and are liable to prosecution." The quotation above carries the trial court's evaluation of evidence of both the prosecution and defence. It was DWl who testified that there was theft that happened prior to the incident. She informed the trial court that she shouted when she saw the victim touching the motor vehicle. It is on the basis of the piece of evidence that the trial court held correctly that the appellant took revenge based on mere thoughts of what happened previously. The above notwithstanding, even if the trial court did not evaluate the defence evidence, which is not the case, this being the first appellate court, 19 ricr is empowered to re-evaluate the evidence on record and come up with Its own findings. Having read the testimonies of the defence witnesses, I find that all of them testified that there was an incident that happened at DWl's home. Though DW2 testified that he was not at the crime scene, he testified that he was inside the house and heard the shout. His evidence was unnecessarily evasive as both PWl and PW2 testified to have seen DW2 at the crime scene holding a panga. PWl testified that they were the ones who held panga and injured him. PW2 testified that he found DW2 and DW3 holding Panga shedding blood. PW3 testified that DWl informed him that it is her children, DW2 and DW3 who injured the victim. It is DW3 who searched the victim and found a phone and proceeded to call the victim's wife. DWl also testified that she went to the hospital to see the victim. One would wonder the reason the 1^ appellant went to the hospital where the victim was being treated from the wounds sustained after he was assaulted and followed up on his condition if at all she was not involved in the incident. DWl, DW2 and DW3 testified to have being aware of the incident and the assault against the victim. But they denied to have been involved in the assault. They claimed that it was other people that assaulted the victim. 20 When asked about the other people, DWl and DW2 denied to have identified any of the persons. However, DW2 testified on page 25 of the proceedings when cross examined that injured the person who stood. For Mdoe to stand there it was not a crimd'. The testimony was an admission that DW2 and 'his colleagues' assaulted the victim. Evaluating the above evidence relating to the incident that happened at night at the appellants' home, I find the testimony of the defense witnesses evasive that was concocted to evade criminal responsibility. In the presence of the testimonies of the prosecution witnesses as evaluated above, I find the defence evidence did not shade any doubt to the prosecution's case. Based on the above observation, I find that fifth ground of appeal unmerited and I dismiss the same. The sixth ground is against the order of compensation to the victim which the appellants contended that the same is illegal for being made without any quantification on the scales; without evidence to justify the award; and without regard that the same should have been pursued in civil court due to serious injuries sustained by the victim. Section 25 of the Penal Code provides for kinds of punishment that a court of competent jurisdiction may impose upon conviction of an accused person. 21 Paragraph (f) of section 25 of the Penal Code provides for payment of compensation as one of the punishments the courts may impose. The record of the trial court reveal that upon conviction, the trial court ordered each of the appellants to pay compensation of TZS 4,000,000 within the period of three years in addition to the sentence for each of them to serve three years imprisonment in jail. I hold that in doing so, the trial court acted within the ambit of section 31 of the Penal Code. Section 31 of the Penal Code empowers the courts to order for compensation to any person injured which may either be in addition to or substitution for any other punishment. It provides: 31. In accordance with the provisions of section 348 of the Criminal Procedure Act, any person who is convicted ofan offence may be adjudged to make compensation to any person injured by his offence and the compensation may be either in addition to or in substitution for any other punishment Again, section 348 (1) of the CPA empowers the court if it is of the opinion that substantial compensation is recoverable by the victim by civil suit, it may in its discretion order the convicted person to pay compensation in kind or in money as it deems fair and reasonable, to a person who suffered material loss or personal injury in consequence of the offence committed. The 22 compensation may be in addition to any other lawful punishment. Section 348(1) of the CPA provides: 348(1) Where an accused person is convicted by any court of any offence not punishabie with death and it appears from the evidence that some other person, whether or not he is the prosecutor or a witness in the case, hassuffered materiaiioss orpersonalinjury in consequence of the offence committed and that substantial compensation is, in the opinion of the court, recoverable by that person by civii suit, the court may, in its discretion and in addition to any other lawfulpunishment, order the convicted person to pay to that other person such compensation, in kind or in money, as the court deems fair and reasonable. It is clear from the above provisions that the courts sitting in criminal cases are empowered to order compensation, like in the present case, arising from personal injury in consequence of the offence committed. The law does not limit the powers to minor or serious injuries as suggested by the appellants. Again, contrary to the appellants' assertion that substantial compensation for injuries should be recoverable in civil action, the provision allows the trial court in its discretion, to order substantial compensation that would be 23 recoverable in a civil suit, be it in kind or money, as the court deems fair and reasonable. I also hold that the trial court's compensation order duly complied with the provisions of section 349 of the CPA. It follows that the second sub part of the appellants' ground that the compensation ordered should have been recoverable through a civil suit is unfounded and therefore unmeritorious. Regarding the complaint on lack of assessment and quantification due to lack of evidence, the same is resolved by the record of the trial court. There is no dispute that the victim was seriously Injured. The fact that the victim was seriously injured is evidenced by the testimonies of PWl on page 7; PW2 on page 9; PW3 on page 11 and 12; PW4 on page 13 and Exhibit PI; DWl on page 19, and 21, DW2 on page 24; DW3 on page 26; and DW4 on page 29, and 31 of the proceedings. On page 7 of the proceedings, PWl testified that he was injured on his head, his leg and other parts of his body. When cross examined by the appellant, PWl informed the trial court that he was using stick because of the injuries. PW4, the medical officer informed the trial court that he took the appellant to theater and treated the victim who had three injuries on his head, and on both legs that was caused by sharp objects. Not only the 24 prosecution's witnesses, but DWl testified as reflected on page 21 of the proceedings that he found the victim bleeding and was injured on his head, hand and leg. In their submissions on the sixth ground, the appellants conceded that the victim was seriously injured. The testimonies clearly established before the trial court that the victim was injured to the extent that he was using a stick to walk even after treatment. PWl was using the stick when was adducing his evidence at the trial court on 12^ September 2023, almost 10 months from the date of the incident at the night of 3^^ November 2024 towards 4^ November 2022. In view of the above evidence on record and the trial court's order for compensation, I find no basis to interfere with the decision of the trial court in its holding and an award of compensation. It was the Honourable trial Magistrate who assessed the victim's condition at the time of giving his testimony that led him to hold the compensation based on the extent the victim was incapacitated. The sixth ground is also unmerited and I dismiss the same. In the final analysis, I hold that the entire appeal lacks merit and I proceed to dismiss the same. I uphold the decision of the trial court in its entirety. It is so ordered. 25 Right of appeal fully explained. DATED at MOROGORO this 05^ day of December 2024. ^ r\.—J H. A. KINY>^KA JUDGE 05/12/2024 26