19740828 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT MWANZA HIGH COURT CRIMINAL APPEAL NO0 16 OF 1974 (Original Criminal Case No0 114 of 1973 of the District Court of Karagwe District at Nyakahanga Before: F.N. Buberwa, Esq0, District Magistrate) PAULIN MKUBA .................. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 .... APPELLANT versus THE REPUBLIC 0 000000000000000000000000eo 00000000000e RESPQNDENT CHARGE: Grievous harm c/s 225 of the Penal Code0 JUDGMENT BIRON J. - The appellant was charged with causing grie- vous harm contrary to section 225 of the Penal Code, and he was sentenced to imprisonment for two years0 He is now appealing0 The appellant at first pleaded not guilty but subse- quently changed his plea, and in answer to the charge.,he is recorded as saying:- • U1did spear (the) complainant without good cause and by doing so I committed 'an offence0 I plead guilty to this charge"0 The prosecutor then recited the facts which were to 'the ffect that the complainant who was drinking in the pombe store run by the appbllant, bought two shillings' worth of pombe from the appellant's wife and he paid on1yonei hil1ing, leaving a balance owing of a shilling which he promised to pay on the following day0 This apparently angered the appellant, whop stated that he did not allow people to drink pornbe on credit, and he thereupon ran into his bedroom, came out with a spear and struck the complain- ant in the chest with it0 ' • The appellant agreed to fthe facts asfurnished by the prosecutor0 a The learned mgistate thereupon returnedLerdit' in terms as follow:- "On his own plea of guilty I convict accused of the offence of unlawful wouding c/s 228(1) •(bf the) renal Code and not grievous harm c/s 225 of (the) Penal Code as charged"0 , In sentencing the appellant the magistrate stated:- "A bad case of using lethal weapon for a trivial matter0 I sentence accused, subject to High Court confirmation, to two (2) years' imprisonment 2 . I and to pay Shs,250/- to(the) complainant as compensation or distress in default.". The appellant has lodged a petition of appeal wherein he states that, although he is aggrieved by both the conviction and the sentence he realises that he can only appeal against the. sentence, as he was convicted on his own plea0 In' that he is perfectly correct, as the appellant was convicted on his own unequivocal plea of guilty and no appeal lies from such conviction0 With regard to the sentence however, he submits that it is excessive and he deserves leniencybecause he had no previous conviction and has a number of dependants on him0 The appellant is likewise appealing from the order for compensation, stating that it is beyond his means0 In submitting this appeal to hearing the learned Judge who did so remarked: "Sentence does seem to be a bit excessive". With: respect to both the learned magistrate and the learned Judge, I cannot forbear from expressing my amazement.at the course taken by each0 First of all, it is not understood why the magistrate reduced the charge from causing grievous harm to unlawful wounding, as the spear wound in the chest penetrated to a depth of four inches. The injuury is described on the medical form produced as dangerous harm0 It therefore constitutes grievous harm as defined in section 5 of the Penal Code, wherein grievous harm is defined as:- "'grievous harm' means any harm which amounts 'to a maim or dangerous harm, or seriously or permanently, injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;". As noted, the injury was described by the doctor who eamined the complainant as dangerous harm. Likewise, I fail' to understand the learned Judge who remarked that the' sentence appears to be excessive. To my mind, if it errs at all, it is on the lenient side, in view of the fact that the spear thrust in the chest to such depth could easily have proved fatal. With regard to the order for compensation, I cannot see the slightest reason in the world for interfering with it. In the' result, the appeal' is dismissed in its entirety. And the sentence which requires confirmation by this Court, is hereby 'confirmed. Delivered in Court at Dar es Saloam this 28th day of August, 1974. (PHILIP BrRD1U JUDGE