roister sambikonongo vs republic 2017 tzhc 2278 30 june 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 47 OF 2017 (Original Criminal Case No. 224 o f 2016 o f the District Court o f Mpwapwa at Mpwapwa ROISTER SAMBIKONONGO........................................ APPELLANT VERSUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT 8th & 30th June, 2017 KWARIKO, J. The appellant herein was arraigned before the District Court of Mpwapwa charged with the offence of Grievous harm contrary to section 225 of the Penal Code [CAP 16 R.E. 2002] where it was alleged that on the 7th day of December, 2016 at about 18:30 hours at Ilolo village within Mpwapwa District in Dodoma Region the appellant unlawfully caused grievous harm to one ELIZABETH JOHN by cutting her with a knife in her mouth causing severe injury. The appellant denied the charge hence the prosecution brought a total of five witnesses to prove the same. The evidence by the prosecution can be recapitulated as follows; On the material day and time the complainant ELIZABETH JOHN, PW1 together with her husband ADRIAN NYEMBELA, PW2 were at a football pitch to watch a match where the appellant who was also there came and started assaulting PWl's daughter before she turned to PW1 and cut her with a knife in the mouth. Thereafter, PW1 was taken to hospital where she was attended by DR. ALEN NDEGEKUWI, PW4. According to PW4 the complainant was found assaulted by a sharp object in her lower lip and sustained injuries that could inhibit her speech and affect her psychologically. PW4's report was filled in a PF3 that was admitted as exhibit PI. After the appellant was taken into restraint was interrogated by PW5, No. WP 5338 DC MWANTUMU where she admitted the allegations and her cautioned statement was taken and admitted in court as exhibit P2. In her defence the appellant said she was attacked by PW1 hence she bit her in the lower lip. She said on cross-examination that she attacked PW1 as she snatched away her customary husband (PW2) whom they had two issues. The appellant did not call any other witness on her behalf. At the end the trial court found that the case against the appellant was proved beyond reasonable doubt, was found guilty, convicted and sentenced to seven (7) years imprisonment. Having been aggrieved by that decision the appellant filed this appeal upon six grounds of appeal which raise five important grounds of complaints as follows; 1. THAT, PW1, PW2 and PW3's evidence contradicted that o f PW4 & PW5 as regards to the weapon used in the assault between a knife and teeth and if at all the alleged knife was not tendered in evidence. 2. THAT, the evidence o f the Doctor (PW5) was not properly analysed. 3. THAT, the cautioned statement was admitted contrary to law under sections 50 & 51 o f the Criminal Procedure Act [ CAP 20 R.E2002]. 4. THAT, the appellant was not given opportunity to comment before exhibits PI & P2 were admitted in evidence as requirements o f section 172 o f the Evidence Act [CAP 6 R.E. 2002]. 5. THAT, the trial court did not consider the circumstances o f the case since the incident occurred during a fight between the appellant and the complainant On the other hand Ms. Magoma learned State Attorney who appeared to argue the appeal on behalf of the respondent Republic did not support the same. Ms. Magoma replied to the grounds of appeal generally that this offence was proved by the evidence of PW1, PW2 and PW3 who were eye witnesses that the appellant attacked the complainant by knife which fact was corroborated by PF3 which showed that the injuries were caused by sharp object, and the same were greater that disproves the appellant's claim that she only bit the complainant; that way the offence of grievous harm was proved. However, it was Ms. Magoma's contention that whether the appellant used knife or teeth the result is the same that she caused permanent injury to the complainant. Hence, the charge was proved beyond reasonable doubt and the conviction was proper. As regards the sentence it was Ms. Magoma's contention that the same was legal. He prayed for the appeal to be dismissed. Having heard from the parties this court is required to decide whether this appeal has merit. To do that the grounds of appeal shall be decided seriatim as follows; As regards the first ground of appeal while this court finds no contradiction as regards prosecution witnesses but it agrees with the appellant that it was not proved that she used a knife in the assault. This is first, that PW2 & PW3 did not say how they disarmed the appellant during the fight if at all she was wielding a knife. Secondly, these witnesses did not say, what kind of knife the appellant used in the assault and thirdly the same was not tendered as exhibit. No one said that they looked for the knife in vain, or that the appellant failed to produce it upon demand. Therefore, it is doubtful if the appellant used a knife in the fight. It remains to be settled that the appellant bit PW1 with her teeth which is also a sharp object as said by the Doctor, PW5. The appellant maintained that she bit PW1 with her teeth. Although using knife or teeth produces the same result as contended by the learned State Attorney but the intention of the perpetrator never remains the same when the two objects are considered. The first ground of appeal succeeds. In the second ground of appeal the appellant did not elaborate what she meant by the Doctor's evidence not been properly anaysed since the trial court took cognizant of the same and found that the injuries alleged by PW1, PW2 & PW3 were proved. This ground of appeal fails. The appellant's complaint in the third ground of appeal is that her cautioned statement was taken contrary to section 50 & 51 of the Criminal Procedure Act. Although the appellant did not elaborate further on her complaint but these provisions of law relate to basic periods available t interview a suspect. That law says that a suspect ought to be interviewed within four hours after being taken into restraint and extension may be sought if that period elapses. The question to be asked here is whether the appellant was interrogated beyond basic periods. PW5 only said she interrogated the appellant from 5:00 pm on 9/12/2016, but did not say when she was arrested and taken into custody. On her part the appellant said that she surrendered herself to the Police Station at 10.30 am of 9/12/2016. Hence, in the absence of any other source as to when the appellant was taken into restraint this court take it that it was 10:30 am on 9/12/2016 as herself said. If that is the case then by interrogating her from 5:00 pm it means it was contrary to the cited law which makes the cautioned statement bad evidence. Apart from the foregoing this court finds that the appellant's cautioned statement was not taken in confirmity with the law under section 57 (2) (a) of the Criminal Procedure Act (supra) which requires such statement to be in the form of questions and answers. Exhibit P2 is just a narration of events contrary to that law. Although the appellant did not object to the statement being tendered but since it was taken contrary to law it is bad evidence. For the foregoing exhibit P2 is hereby expunged from the record. The third ground of appeal has merit. In the fourth ground of appeal first the cited law section 172 of the Evidence Act (supra) is irrelevant in this respect as that relates to documents sought to be used by a witness to refresh memory. Also, it is not true that the appellant was denied opportunity to comment when exhibits PI & P2 were tendered in evidence. In both instances the record says that the appellant was given opportunity to comment where she said she had no objection hence the same where admitted as exhibits. This ground of appeal flops. In the fifth ground of appeal, truly, the trial court did not put any consideration to the fact that the incident occurred during a fight. This could have been shown during sentencing time. It is the law that when offence is committed during a fight the same is used as mitigating factor at the time of sentencing. This ground of appeal has merit. For the foregoing this court finds that although it was proved that the appellant wounded the complainant but she did not use the knife as alleged. Hence the conviction was proper and it is hereby upheld. As regards the sentence this court disagrees with the learned State Attorney that it was legal. Although the sentence provided for the charged offence under section 225 of the Penal Code is seven years imprisonment but that is maximum sentence where the trial Magistrate ought to consider his sentencing powers before settling on what to impose. This is where section 170 (1) & (2) of the Criminal Procedure Act (supra) comes into play. This law restricts imposition of jail terms to offenders in respect of non-scheduled offences to not more than twelve months by Magistrates other than Senior Resident Magistrates otherwise the record of the case should be transmitted to the High Court for confirmation of sentence by a Judge. In the case at hand the trial Magistrate is not a Senior Resident Magistrate but only a Resident Magistrate, hence ought to have transmitted the record for confirmation by a Judge. This was not done and hence the sentence of seven (7) years imprisonment was illegal and thus by this court's revisional powers under sections 372 and 373 of the Criminal Procedure Act (supra) is hereby quashed and set aside and replaced by twelve months imprisonment which would have been legally meted out to be effective from the date of conviction by the trial court. In fine, the appeal succeeds as shown. M.A. KWARIKO JUDGE 30/6/2017 Judgment delivered in court today in the presence of the Appellant and Ms. Mwakyusa learned State Attorney for the Respondent Republic. Mr. Nyembe Court Clerk present. JUDGE 30/6/2017