19751226 TZHC Arusha

-: • IN THE HIGH COURT OF. TANZANIA AT. ARUSHA APPELLATE JURISICTION 141GH COURT CRIMINALAPPEAL NO0 79 OF 1974 • ORIGINAL.CRIMINAL CASE NO0 1388 OF 1972 OF THE flISTRICT COURT OI' MOSHI DISTRICT AT MOS-II Before K0A.Kas Esq, ----- -----------District Magistrate }-1A3113 ABDALLAH -- --------------------- - --- AP P E LL AN T (Original ACCUSed) versus - THE REPU3LIC -- -------- -------- -- RESPON )ENT (Original Prosecutor) JUDGEMENT NYALALI, AG0 J. the appellant was charged and convicted in the District Court of Moshi )itrict at 4si with the offence of Grievous Harm c/s 225 of the PenatCode, Cap0 16 and was sentenced to 3 years irnprisonm'at0 He."is now appealing to this Court against the conviction aM sentñ60 The facts of the case according to th prosecution eré that th appellant was at all matcrial time the husbend of PW 1 but the couple was ens trang. During the night of 16th Athfust .1972, the appellant came to the matrimonial home and violently assaulted r.W lwith .a priga . causing her to suffer various body injuries and she lost corsciousness0 When later she regained consciousness, she ran to her parents home, hence she was taken to hc€pital for treatment. .. The Defence case at the trial was a general denial of the prosecution case and an asertion that th:re was no evidence to show that it was the appellant and nobody else who assaulted POW 1 So the most important point in this case is the identity of the person who assaulted P.W 1. Apparently there was no other person present when P.W 1 was assaulted by the assailant. Now, could P.W 1 have mistaken the identity of her assaiilant2 I agree with Mr. Mwipopo, learned State Attorney that there was no roorz for such a mistake since there was a light burning when she was assaulted and there was an exchange of words between the assaillant and p.W 1, Since the appellant was P0W l's husband, there is no likelihood on this earth that POW 1 made a mistake about the identity of the assaillant who must have been the appellant.. According to the medical evidence contained on a PF. 3, the injuries suffered by P.W 1 were described by the examining doctor as being bruises except P.W l's vomiting of blood which WaS described as being grievo ~i s harm. As rightly pointed out ov the learned state Attorney, the other point for consideration in this case is whether the injuries sustained by POW 1 amounted to grievous harm0 "Grievous harm" is defined by Section 5 of the Penal Code as being:- 0 0 0 00./2 -2- "0000. any harñi which amounts to a main) or dangetous harm, or seriously or permanently injures health or which is likely to injur.e health, or which extéhds to permanent disfigiirement. 1 . or to any permanent or serious injury to external or , fnterial ...organ, member or sense0" The question to bc asked which of the injuries suffer a by F0W I falls within the definition of "Grievous Harm"0 The trial magistrate considered the poInt and.statd: "Th. physical harm which. esulted in the Witness to vomit blood, was categorized by the mLdical Qfficer as "grvous harm". I.a.ccept that opinion as the harm done was likely toin -jure the witnessas:.health permanently -a." .. ., . I do not thin that the trial magistra'ta wa z'ight in accepting the opinion of the edical officer since the basis of that opinion that is the nature of injury or cause, which made.P.W 1vomi -L blood - was not isclosd by the evidence Under those circuristaricrs there ' no basis for the trial cours conclusion that there was any "harm done likely to injure the witnesses 'hcalth permancntly." I wou'd say that the appellant could hve been convicted in the altarnativc under section 181 of the Criminal Procedure Coci for the offLnce of Assault ocrasioning actual bodly herm c/s 241 of the I ., Pen:l Code, and I wilt and now do hereby substitute a conviction for Assault occassioning adtuaibodily harn c/s 241 of the Penal Cbde land I do reduce the sentence to 2years imprisnhent. 2i1 k' F.L. NYALALI, 'AG. J. .• . Judgement' delivered inopen Court this saffleday of 26th December, 1975 at Jthisha in the pesence of Mr. Mwipopo, Learned State Attorney. F.L. NYALALI,:AG.'JUDGE. /Kim athi