Musa Abdallah Nyamaka

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000028585 /2024 CASE REFERENCE NO. 202410062000028585 (Arising from Criminal Case No. 19737of2024 at Musoma District Cout) BETWEEN MUSA ABDALLAH NYAMAKA......................... APPELLANT VERSUS REPUBLIC .................................................................... RESPONDENT JUDGMENT 11th December2024& 07 February, 2025 M. L, KOMBA, J.: This appeal originates from the decision of the District Court of Musoma in Criminal Case No. 000019737/2024 where the above-named appellant was convicted of the offence of Causing Grievous Harm contrary to Section 225 of the Penal Code, [Cap 16 R.E 2022] and sentenced to five (5) years imprisonment and to pay compensation to victim to the tune of TZS 2,000,000/. The background of this appeal can be traced from prosecution facts that on diverse dates of May, 2024 at Nyakatende village within the District of Page 1 of 16 Musoma in Mara region, the above-named appellant caused grievous body harm to one NYANJIGA D/O FARES MAKARARA, the victim. On material date, appellant asked the victim to go and buy four (4) kilograms of maize which costs TZS 4600/=. Apart from that cost of maize, victim spent TZS 200/ for grinding and she remained with TZS 200/= from TZS 5,000/ which was given by the appellant. The remaining sum, TZS 200/= was used to buy bun (andazi) for her son, Phares Pastory. When appellant noted that victim spend TZS 200/ for buns he was furious and assaulted the victim. Facts revealed further that appellant took the knife, hammer and plies and forcefully removed teeth of the victim. He managed to remove three teeth and following that cruelty action, the victim became unconscious. When she gains her sense, she found her teeth at the scene and her co wife took victim to her house. She was then warned not to report the incident to anybody. Her relative was informed when the victim attended the funeral of one of her relative and the incident was shared to her relatives, they report the matter to police station, victim was attended by PW5 a police, then was examined by PW2 who is medical practitioner and latter on the accused was arrested by PW3. Page 2 of 16 The appellant was taken to court charged with the offence but denied to commit the crime on account that she loves his wife he could not do such cruelty action. He defended that his wife had habit of going back to their mother frequently and last time she returned with a baby but he accepted his wife because he loves her. He testified that last time when she returns to his home, victim had no teeth. Basing on the evidence adduced, the trial Magistrate was satisfied that appellant committed the crime and convicted the appellant and sentenced him imprisonment and ordered compensation. Aggrieved by the verdict and punishment, appellant is here now, searching for justice in way of appeal equipped with nine (9) grounds of appeal which are rephrased as follows; 1. That, the trial magistrate erred in taw and fact to convict and sentence the appellant basing on PW1 'S testimony who gave lies in collaboration with prosecution side since howpossible was for PW1 'S three teeth be removed by appellant in company of another not arrested using knife, hammer and praise and PW1 managed to stay without treatment for 14 days?. 2. That, the incident of grievous towards the victim was not reported anywhere for instance street hamlet/village hamlet. 3. That, the trial magistrate misdirected herself to try the fabricated case against the appellant by the prosecution side. Page 3 of 16 4. That, the trial magistrate erred in law and fact to convict innocent appellant since what was narrated by PW1 before the court was just family misunderstands between die appellant and the PW1. 5. That, the case against the appellant was fabricated byprosecution side since PW1 she lost conscious after her teeth being removed by appellant in company of (mke mwenzake) but she managed to keep three teeth which were later submitted before police officer and court as exhibit. 6. That, there was no eye witness called by prosecution side before the trial court to testify their claims that the appellant harmed PW1 and the testimony was not collaborated. 7. That, the magistrate erred in law and fact by convicting the appellant without digesting his defence that he was not the one who harmed PW1 as they were already separated. 8. That, the trial magistrate erred in law and fact by convicting the appellant with mere statements from PW2 who found her teeth being uprooted without any proof in her gum and that the incident seemed to happen about one month ago. 9. That, the trial magistrate erred in law and fact to convict and sentence the appellant who was found without during his arrest. When the matter was scheduled for hearing, appellant stood solo without any representation and prayed this court to adopt his petition of appeal and retain rights for rejoinder. Republic was represented by Ms. Agma Haule and Ms. Beatrice Mgumba both State Attorneys. Page 4 of 16 Ms. Haule started by registering their position that the respondent is against the appeal and argued the grounds of appeal. On the 1st and 3rd ground of appeal she was of the submission that it was true, victim lose her teeth and delayed medical services but that delay should not be taken as she was not assaulted because she submitted victims' testimony was proper and was collaborated by others witnesses including PW4 and PW2 who was medical practitioner. She further submitted that there was a neighbour who explained they know victim when she was with her teeth and that it was appellant who cause all that. In proving that there was collaboration, State Attorney submitted that PW5 collaborates his testimony that he received teeth and was tendered as exhibt PE2. The case was not staged as victim was found without teeth. She insisted that PW1 who was the victim was credible, she spoke truth and did not shake even during cross examination and refer me to the case of Goodluck Kyando vs Republic, 2006 TLR 363. On the 2nd ground on delay to report to village leaders or hamlet leaders, State Attorney admit to that fact however, she prayed this court to note what happened was domestic violence where in most cases victims failed to report the crime due to the society perception. Appellant and victim had relationship Page 5 of 16 as both testified, Victim state clearly how the appellant was furious and when she gains sense she was warned by appellant that if she will reveal what I + i * ' - H happened she will be slaughtered and therefore, she adds, it was not easy for the victim to report the matter on time. She insisted that late report does not mean there was no crime committed but it was circumstance which made her to delay reporting the crime. 4th ground State Attorney admits that victim and appellant were living together and appellant explained in his testimony that he loves his wife, she accepts that when the two leave together there is misunderstanding and it is possible to solve their issues. However, that was not the position on appellant side, State Attorney was of the position that if appellant loved his wife, they could solve that problem. She went on submitting on the 5th ground that victim explained how she managed to collect her teeth as it was after a time when she gains sense when she picked up teeth at the scene. As submitted at the 2nd ground, she J re iterates her submission that the circumstance of their life forced her not to report on time till when she met with her relatives is when they started to take appropriate measures. Page 6 of 16 On the complain that there was no eye witness as it appears on the 6th ground, respondent submitted that victim was among eye witness whose testimony was collaborated, by doctor and neighbour. However, State Attorney went on submitting that there is no fixed number of witnesses. The offence which appellant was charged was causing Grievous Harm, the victim proved she had no teeth and mentioned it was appellant who injured her. For them the victim is eye witness and credible. About defence of the appellant as was listed on the 7th ground, State Attorney submitted that at page 27, 30 and 31 of the judgment the trial Magistrate analysed testimony of both sides and it was found the defence was normal which did not raise any doubt bearing in mind that victim had no reason to tell lie against her husband. On the quality of judgment she submitted that testimony was summarized and analysed as is required by law and Magistrate come out with position. Ms. Haule repeated what she submitted on 1st and 3rd ground while addressing ground number 8 and insisted that conviction did not base on testimony of PW2 alone. Submitting for the 8th ground she reiterate her submission about testimony of the Doctor it is our submission that we made submission on the 3rd ground which must be considered and further the conviction did not base on PW2 Page 7 of 16 alone rather collaborative evidence; of prosecution evidence. The fact that he was not expert in removing teeth does not exonerate him from crime as attacker has different means to fulfill their desire. On the issue that appellant was arrested without weapon as featured in ground number 9, State Attorney referred me to Republic vs Richard Benjamin M.ngulwi.Criminal Session No. 46 of 1997.at page 13 where.this court said failure to tender weapon used by accused does not mean that crime was not committed. Referring the case at hand, she was of the submission that the fact that appellant was not arrested with weapon does not mean that he did not injure the victim or he did not had weapons during ’ , J commission of the offence. She maintained that the offence was proved beyond doubt and the appellant intended to injure the victim. Ms. Haule decided to make general submission when she was done with grounds of appeal that In the case of Enock Kipela vs. Republic, Criminal Appeal No. 150 of 1994; intention of accused in that case was analysed including type of weapon and size. She refer the appeal at hand where the victim said there was pliers, hummer and knife, all these are dangerous weapon. She went on submitting that removing teeth is profession process and if is done by unqualified personnel, that means appellant intended to Page 8 of 16 inflict pain to victim and he used more effort to remove teeth which were stable. Victim was affected in mouth which is connected to other sensory organs and that was dangerous to health of any person as explained by PW2 that removing teeth unprofessional^ may cause too much bleeding and lose conscious (Kuzimia'). The number of blow also has to be considered as appellant removed many teeth that means the blow was more than one even though one blow was said to be enough. She went on submitting that words uttered by appellant was revealed by victim that Veo utaniona mtoto wa masato', 'nitamuua mtot wako kama utasema mambo haya'. These words as per submission show ill intention of the appellant. Further, she analysed conduct of the appellant as he locked the victim in house so that he cannot tell other people what happened. She urge me to consider the position set by the court in the case of Enock Kipela (supra). I State Attorney further refer me to Kubezya John vs Republic; Criminal Appeal No. 488 of 2015 which provides conditions when the defence of alib will be invoked, that appellant was supposed to issue notice before hearing or else the defence will not be considered. Further it is directed that appellant is allowed have a witness who will prove they were together but in the Page 9 of 16 current appeal, the appellant did not bring any person and State Attorney ’J J H was of the submission that find the defence was not properly used. Ms. Haule attack the. defence of the appellant that when he claimed that second time when victim went back to her matrimonial home she had no teeth that means victim was tortured when she was away. Ms. Haule submitted that appellant did not raise that issue when victim was in witness box so that she could clarify and eyen the issue that appellant and his wife were not in good terms with neighbour was not raised when that neighbour was in court and she finds all was after thought. She cemented that the > r . testimony of prosecution was water tight and prayed the appeal to be found with less merit. When given time for rejoinder appellant submitted that the victim lied in court because it was impossible for him to remove teeth by knife and pliers । ' and managed to survived for 14 days without reporting to any authority. ’ * Further, he submitted that if what Was testified was true, even the co wife - * was supposed to be arrested for the crime committed by him while insisting that victim was injured in the year 2023 and lost her teeth. He maintained that he love his wife and prayed to be find innocent. I I Page 10 of 16 My duty is to determine the appeal before me if has merit or otherwise. By doing so I shall analyse grounds as fronted by the appellant and the submission by State Attorney. I shall start by combining ground 2n<J and 4th about the delay in reporting the matter and that the co wife was not arrested. When reading the proceedings I find the testimony of the victim that she was locked in house after the assault and warned by the appellant not to inform any person or else she will be slaughtered. In their response, State Attorney submitted that that crime is categorized as domestic violence and, in most cases, victims delay in reporting the matter due to society perception discernment. I join hand with her that, it was not possible to report the violence done by husband to his wife, first the society will not understand the woman and seconds; victim was warned not to say anything to anybody, she opted to be obedient. Victim lost her teeth, it has to be noted that by loosing teeth physical appearance of her face changed and in normal circumstance it is not easy to face some people. In circumstances of this case, delay in reporting the offence does not mean the domestic violence was not done and the crime was not committed. On the issue that co wife of the victim was not arrested, that fact does not prove that appellant did not commit crime neither prove that the offence Page 11 of 16 was not proved beyond reasonable doubt as per standard of criminal offences. For the Republic to win conviction, they have to prove the offence was committed by the accused and in this case the appellant. I find these grounds are less merit. 6th ground was about an eye witness, I join hand with State Attorney that the victim was an eye witness asnd she managed to explained what happened on material date. She managed to see the appellant while committing the crime and testify in court. It has to be remembered that there h ' * ■f r is no fixed number of witnesses required to prove the offence. See Hamis Mohamed vs The Republic, Criminal Appeal No. 297 of 2011. About the defence.as complained in ground number 7,1 had time to read the proceedings and the judgment of the trial court and find the following when trial Magistrate analyse the evidence. 'On part of the accused person, he denied to have committed such an act and informed this Court that, the victim returned to rhatrifnoniai home in 2023 without those teeth, she was from another man whom . _ she said to the accused person used to beat her several times. Therefore, according to accusedperson is that, the victim's teeth were removedby the time when she was living with that other man. Accused insisted that, he loves his wife, he cannot do such a thing to a woman Page 12 of 16 4- ' he loves. Weighing out this evidence from two sides of this case, I actually not convinced with the defence evidence. I sincerely find this defence is weak to raise doubts on the evidence tendered by prosecution.' This is how the defence was analysed and the finding was that, the defence did not shake the prosecution case. The fact that victim was leaving matrimonial home frequently does not mean she was not at home at material time and was not assaulted by the appellant. Both the victim and the appellant admitted that victim left matrimonial home several times. What was not in agreement is that in 2023 victim return home without teeth. I find the evidence was analysed, the fact that she was moving around was considered but the defence did not shake the prosecution case that appellant removed victim teeth by using different tools while he was not a dentist hence, he caused grievous harm. I find the evidence was considered and this ground lacks merit. I join the submission by State Attorney on the 9th ground that appellant had no weapon or tools at the time of his arrest. However, failure to tender the said tools does not mean he did not commit the offence bearing in mind that the crime was revealed some days later. As analysed, conviction is done when prosecution managed to prove the offence beyond reasonable doubt. Page 13 of 16 Ip .the case at hand, victim was an eye witness, she saw what was.done by ■Si the appellant and testified in court. So far as the offence was reported some days later, it was. not possible to find appellant with tolls and the only evidence to prove what he did was that of the victim who is also an eye I ' ..." , . * ’. * ■ •**’> * ' witness. I also subscribe to the position in Republic vs Richard Benjamin Mngulwi (supra) that failure to tender weapon used in commission of the ' 1 ./ v i t offence does not mean that the crime was not committed. In that case,' deceased was confirmed dead due to injury sustained. In the case at hand, victim was found without three teeth and the report revealed she was healed r\ ■. from that action and it was not disputed that victim lost three teeth.., ■ r '■ . ■ ' i .1 1 > I .... ‘ '■ ' ■ . ' ' ■ Now I combine the 1st, 3rd, 5th and 8th grounds of appeal where the appellant •- '’I ■.*■,.• is complaining of the fabricated case and impossibility of using the said tools in committing the crime (removing teeth). In this ground it was the argument I‘ ' ■ ■ ■i i of the appellant that how did the victim manage to collect her teeth while was linconscious, how she managed to keep teeth for a long time, how did ,1 the appellant remove tooth by hammer and why victim did not report the matter to hamlet leader. These questions led appellant to conclude that the l| case was fabricated. What he did not reveal in his defence and even in his Page 14 of 16 submission during appeal is why he believed his wife fabricate the case if they were living in harmony. A reasonable person may ask if the victim was loved by appellant why she fabricate the case and for what benefit. About issues pointed in petition of appeal, that how was it possible to remove teeth by hammer or plies was considered by the trial court that, it was not an easy task that why State * * ' i Attorney submitted appellant cause grievous body harm to the victim because to remove the stable tooth from its position need a lot of force. And from that process the offence is created. Tolls used to remove teeth is not created for that purpose and the force used caused body harm. Victim testifies that he saw the appellant removing her teeth and he used the mentioned tools. She was an eye witness. The defence did not dis-prove what was testified by the victim and therefore I find the idea of fabricating the case cannot stand as PW1 saw everything and when she was cross examined by the appellant she explained the brutal life she experienced while living with the appellant. Further, I find the defence of the appellant did not shake eye witness testimony and therefore, the combined grounds lacks merit too. Page 15 of 16 Generally, I find the appeal lacks merit as all grounds were fruitless and therefore the appeal is dismissed. DATED at MUSOMA this 07th day of February, 2025. M. L. KOMBA JUDGE Judgment delivered in chamber in the presence of Ms. Damari Nyange for respondent and appellant who appeared in person. Right of Appeal explained. U/ M. L. KOMBA JUDGE 07 February, 2025 Page 16 of 16