197206001 TZHC Dodoma

IN THE HIGH COiJRT OF TANZANIA AT DODOMA _ APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 29 OF 1972 ORIGINAL CRIMINAL CASE NO 403 OF 1971 OF THE DISTRICT COURT OP KONDOA DISTRICT AT KONDOA Before S. H. MSELE,Esq, DISTRICT MAGISTRATE. BH11A S/OMOHANEDÔ,,.O..00....,,OOØ.APPELLA1\IT versus THE REPUBIIO RESPONDENT CfLPRG Assault causin'; riiovous bodily harm c/s 225 of the Penal Coder U D G E N E N T NNZAVAS J. The appellant was charged with and convicted of assault causing grievous bodily harm contrary to section 225 of the Penal I Code and sentenced to 9 t!ionths imprisonment and ordered to pay ns. 300/= compensation to the complainant. He has appealed aainst the conviction and senteice. It is not in dispute in this appeal that the accused on 9/12/71 assaulted one Tatu Mohamed (Pw1), the complainant, and caused her to lose one tooth. Equally it is not in dispute that the assault was unlawful. It has however been argued by the learned defenôe counsel that the learned trial magistrate misdirected himself in law when he held that loss of a tooth as a result of the assault amounted to griev'ous harm. 4n,support of his argument the learned counsel referred"the court to the decision in R. VSMIPAA S 0 MANANJIMIAj19J H.C.D. Case No. 265 in which Seaton J. as he then was) held that loss of one tooth could not amount to grievous harm as such loss did not amoi.tht to permanent or serious injury or disfigurement. In coming to his deciaion the learned judge followed the decision iii. A. The learned defence counsel further argued that the facts of the case and the nature of the injury amounted only to an offence under section 241, that is assault causing actual bodily harm. It was also the learned counsel's submission that if his argument that the offence only amounted to causing actual bodily harm is upheld, the sentence imposed was excessive. The learned state attorney conceded with the defence argu- ment that the offence comitted by the appellant did not amount to grievous harm contrary to section 225 of the Penal Code, He was also of the view that had the trial magistrate convicted the appellant of assault causing actual bodily harm contrary to section 241 of the Penal Code he would have imposed a lesser sentence than the one of 9 months imprisonment. As for the compensation order the Republic argued that the order was justified in view of the injuries sustained by the complainant. Clearly the assault of the complainant by the appellant did not amount to grievous harm. For an assault to amount to grievous harm the injuries suffered by a a complainant must amount to a maim or a dangerous harm or seriously or permanently injures health or the injury must extend to permanent disfigurement as defined in section 5 of the Penal Code. On this point I would strongly advice the learned district magistrate to read the above quotted decisions as well as the recent decision in SEB&STIAN GILBER T VS ,QH O C.D. Case No. 281 .. ..../ 2 I agree with the defence counsel that in the circumstances of this case the injury suffered by the complainant as a result of the assault only amounted to assault causing actual bodily harm contary to section 241 of the Penal Code. As for the sentence of 9 months imprisonment I agree with the learned district Magistrate that prison sentence was indicated but with respect it is my view that 9 months imprisonment for a first offender was unduly severe. I note that the appellant has already been in prison for over 4 months. This ia adequate punishment. I accordingly reduce the sentence of 9 months imprisonment to such term of imprisonment as would result in the immediate release of the accused. As for the mompensation order I must say that I am unable to follow the learned defence counselts argument that the trial magistrate should have left the oomplainant to file a suit for compensation for her injuries. The compensation order was properly ordered under section 176 of the Criminal Procedure Code 0 There is nothing urong with F it. The Skis. 300/= compensation order stands. ; DODMA N. I. NNZAVAs, 1 1st June, 1972, * Mangat for the Appellant. Desouza for the Respondent. 4 OEM -4- -,• - .