HUSSEIN SALIM HAMIS VS

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY CRIMINAL APPEAL NO. 20463 OF 2024 (C/F Criminal Case No. 39 of 2023 in the District Court of Arusha at Arusha) HUSSEIN SALIM HAMIS............................................................... APPELLANT VERSUS THE REPUBLIC........................................... ................................ RESPONDENT JUDGMENT 29th November & 13th December, 2024 KAINDA, J.: In the District Court of Arusha, the appellant was charged with two charges of causing grievous harm contrary to Section 225 of the Penal Code, [Cap 16 R.E.2022]. In the first count, it was alleged that on the 25th December, 2023 at Melita Ward within the District and Region of Arusha, the appellant unlawfully caused a grievous harm to one Hilda Solomon Mafie by stabbing her with a knife in her vagina and her right thigh. On the same date, time and place, he also caused grievous harm to one Allen Ezekiel Kaaya by stabbing him with a knife on his nose and right ribs. After a full trial, the appellant was found guilty of the first count. He was acquitted on the second count for the evidence was insufficient. i Consequently, he was convicted on the first count and sentenced to an imprisonment to a term of three (3) years. In addition, he was ordered to pay compensation to the victim, Hilda Solomon Mafie at Tanzanian Shillings Five Hundred Thousand (TZS. 500,000/=). Aggrieved by the conviction and sentence, the appellant has preferred this appeal fronting the following eleven grounds of grievances; 1. That, the trial magistrate erred in law and fact for completely failing to raise proper issues for determination which in turn led to an injustice decision against the appellant. 2. That, the trial magistrate erred in law and fact for holding and concluding that the complainant sustained grievous harm while completely ignoring the contradictory testimonies from the witnesses as to the place of injury and the time of injury. 3. That, the trial magistrate erred in law and fact for holding and concluding that the complainant sustained grievous harm while completely ignoring the evidence on record which suggests otherwise. 4. That, the trial magistrate grossly erred in law and in fact for holding that the issue as to which place was the complainant injured or where she initially went for treatment, whether at Hope dispensary or Muriet Health Centre is a minor issue. 5. That, the trial magistrate grossly erred in law and in fact for holding that the court cannot raise an adverse inference against the prosecution for failure to bring a key witness despite the obvious 2 evidence on record of failure by the prosecution to bring the key witnesses. 6. That, the trial magistrate grossly erred in law and in fact for holding that it was the appellant who stabbed the complainant despite the magistrate's admission that the key witness to the stabbing was not brought to testify and was disqualified by the court. 7. That, the trial magistrate grossly erred in law and in fact for failure to give weight to the testimony adduced by the appellant and which was further supported by the testimonies ofDW1 and DW2 and the exhibits on record. 8. That, the trial magistrate erred in law and in fact by convicting and sentencing the appellant to three years imprisonment contrary to the exhibits on record and in absence of essential evidence toprove the case. 9. That, the trial magistrate erred in law and in fact by convicting the appellant to three years imprisonment despite the prosecution failure to prove their case beyond reasonable doubt as required by law. 10. That, the trial court magistrate erred in law and in fact for ordering the appellant to pay compensation to the complainant to the tune of TZS. 500,000/= for the injuries sustained the act that is contrary to law. 11. That, the trial court erred in law and in fact for being bias toward the appellant which in turn it caused injustice to the appellant. The background facts giving rise to the case as discerned from the prosecution version is as follows; On 25th December, 2023 the appellant 3 together with PW2 his wife and their children went to a place known as Kwa Mrombootv eat roasted goat meat. They went back home at around 9pm. Later on, around 11pm, the appellant wake-up his wife and told her that that was her last day. He took a machete put on her neck threatening to kill. PW2 raised an alarm calling her son Allan Ezekiel Kaaya who was in another room. Allan Kaaya went in the room took a machete from the appellant and threw it away. The appellant went to the sitting room and came back with a knife, stabbed his wife in her vagina and on her right thigh. Thereafter, the appellant went back to the sitting room where he stabbed his son, Allan Kaaya on his nose and his ribs. His wife raised an alarm and the appellant run away. The matter was reported at Muriet Police Station. The hearing of the appeal was by written submissions. I thank the appellant for filling his submission in accordance to the scheduling order. On their party, the respondent did not file the document. With regard to 1st ground, the appellants' complaint is that the trial magistrate ought to frame more elaborate issues. It was argued that the two framed issues were too general for determination of the case. He referred to the case of Wine Ombwera v. Edwin Phinas, PC Matrimonial Appeal No. 4 of 2020. 4 In determination of the matter before him, the trial magistrate asked two questions; one that, whether the victims sustained grievous harm; two that, whether it is the accused person who caused the grievous harm to the victim. I am of the view that the trial magistrate was right to frame such questions. The appellant is charged with an offence of causing grievous harm contrary to Section 225 of the Penal Code which provides that; " 225. Any person who unlawfully does grievous harm a cited case of Wine Ombwera v. Edwin Phinas (supra) unlike in this case, the court was dealing with a situation where the court determined the matter on the issue raised by the court without inviting the parties to address on that issue. The first ground is without merit and is accordingly dismissed. The appellant argued the second and third grounds jointly. It was submitted that, the finding that PW2 the victim was stabbed at her vagina and at her right thigh but it was not backed by the evidence on record. From the evidence on record, it is undisputed that PW2 sustained injuries. She testified that she was stabbed by the appellant. PW3 witnessed the 5 appellant stabbing PW2. Another testimony is that of DW1 and DW2 who testified that PW2 was injured between her legs. Even exhibit P3 the medical report which was admitted without objection clearly show that the victim sustained injuries. Accordingly, just like the first ground, the second and third grounds of appeal is without merit and is dismissed. I now come to the fourth and eleven grounds which was argued jointly. The appellants' complaint is that, according to the testimony of DW1, DW2, and DW3 together with exhibit P3 a medical report is that the victim had minor wound on her right thigh. She was never been stabbed at her vagina. On this regard, the appellant submitted that, the trial magistrate was biased. I did not comprehend the gist of the complaint in these grounds. Is it that the appellant is of the opinion that he could have been charged with a lesser offence. In any case, according to the evidence on record, of which I have no doubt of its truthfulness, the victim was injured on between her legs and on her right thigh. The issue whether she was stitched or that she was treated and discharged on same day is not an ingredient of the offence of causing grievous harm. In fine, all the grounds as submitted fails and is hereby dismissed. To that end, I am satisfied that the appeal lacks merit and is accordingly dismissed in its entirety. 6 Order accordingly. S. J. KAINDA JUDGE 13.12.2024 Judgement delivered under my hand and seal of this court in Chambers this 6th day of November, 2024 in the presence of the appellant in person unrepresented and Mr. Philbert Msuya, learned State Attorney, for the respondent/Republic. Right of appeal to the Court of Appeal fully explained. S. J. KAINDA JUDGE 13.12.2024 7