20171218 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) ATMWANZA . APPELLATE JURISDICTION HC.CRIMINAL APPEAL NO.290 OF 2017 (Original Criminal Case No. 235 of 2016 of the District Court of Musoma District at Musoma) 1.HADIJA ADAMU } · - 2.CHIKU ADAMU ................................ ~ ........... .. APPELLANTS 3.MODESTER ADAMU VERSUS THE REPUBLIC ........................................................ RESPONDENT 0 Last Order: 25/09/2017 Judgment: 18/12/2017 JUDGMENT MAKARAMBA. J.: This is Judgment on appeal from the decision of the District Court of Musoma at Musoma in Criminal Case No. 235 of 2016 dated 18th July, 2017 before the Hon. R.B. Maganga EsqSDM. Briefly, in 2016, the Appellants namely; Hadija d/ o Ada mu, 1st accused/Appellant, Chiku d/ o Ada mu, 2nd accused/Appellant, and Modester d/o Adamu, 3rd accused/Appellant, . were jointly arraigned before the District Court of Musoma at Musoma on a charge of Common Assault contrary to section 240 of the Penal Code [Cap.16 R.E. 2002]. They were accordingly convicted and each and every accused Page 1 of 14 person/appellant was sentenced to four ( 4) years in prison. Furthermore, each accused person/appellant was ordered to compensate the victim of the common assault, one Anastazia Raphael (PWl) a sum of Tanzanian Fifty Thousand Shillings (Tshs.50,000/=) for the injuries the victim had sustained in the hands of Appellants/accused persons. Aggrieved by such decision, the Appellants have appealed it before this Court on the following grounds, namely; 1. That, the trial Magistrate erred in law and facts by considering only the evidence given by prosecution side by entreating the evidence given by PWl/ PW2 and PW4 which had no merit in this case. 2. That, the evidence issued by PW3 had no connection with the facts of the case/ whereby the trial Magistrate erred in law and fact by admitting the Exhibit PF3 issued by the prosecutor as an evidence which can possible be taken in any manner. 3. That, the evidence issued before the Court, both accused persons assaulted the PWl at material night were not strongly proved no one witnessed them through eyes witness. 4. That, the accused had no common intention to assaulted PWl/ as alleged by the prosecution side and also was erred by the trial Magistrate only basing on the prosecution side this did not proved strongly. Page 2 of 14 5. That the sentence issued for .J"d accused did not consider the age, being a student 6. That the trial Magistrate did not consider the juvenile Court rules in administering ofjustice for a child especially during conducting their cases. The Appellants prayed before this Court for the following orders:- 1. The appeal be allowed; 2. This Court to set aside both conviction and sentence; and 3. The Appellants be set at liberty. In prosecuting the appeal, M/s Gisela Alex, learned State Attorney represented the Republic/Respondent. The Appellants appeared in person unrepresented. They prayed that the grounds of appeal be entered and recorded as forming part of their submissions in chief; which prayer this Court duly granted and invited M/s Gisela to make a reply. In reply, M/s Gisela supported the conviction but not the sentence since in terms of section 240 of the Penal Code under which the accused persons were charged, upon conviction the offence of common assault carries a sentence of one (1) year in jail. Therefore, the sentence of four ( 4) years in prison and each accused person to compensate the victim with Tshs. 50,000/= not only was excessive but contrary to the law, M/s Gisela further submitted. M/s Gisela submitted further that, on the part of the 1st Accused, Hadija d/ o Adamu, and the 3rd accused, Modester d/ o Ada mu, the Page 3 of 14 sentence imposed on them was manifestly illegal. This is so because at the time of their conviction they were both below the age of (18) years, an age recognized in our law as a child. In terms of section 4 (1) and 119 (1) of the Law of the Child Act, 2009, a child shall not be imprisoned, M/s Gisela further submitted. According to M/s Gisela, section 119 (2) of the same Act provides for alternative sentences, including placing the child under the care of a fit person or institution, releasing him or her unconditionally; and where the child is charged with an offence which upon conviction would attract a prison term, to be sent to an Approved School. On those grounds, M/s Gisela was of the firm view that prison sentence imposed on the 1st and 3rd accused persos/appellants, was manifestly illegal. M/s Gisela prayed that this Court be pleased to invoke the provisions of section 388 of the Criminal Procedure Act, Cap.20 R.E. 2002 and mete out an appropriate sentence against the Appellants. Submitting on the conviction of the Appellants for the offence of Common Assault, M/s Gisela submitted that, according to the evidence of PWl, who is the victim of the common assault, one Anastazia Raphael, on 20/10/2016, the Appellants passed by her home and started insulting her by calling her a harlot ['Malaya') and that she was going out with young children. Consequently, an exchange of words ensued between the Appellants and the victim. The Appellants started attacking the victim by hitting her with fists and kicks on various parts of her body and even grabbed her by her neck while beating her up. PWl raised alarm for assistance upon which PW2, Naomi Maira who was inside the house came and witnessed the Appellants attacking PWl. This was around 8:00 Page 4of 14 p.m. but light from a tube light which was intense and coupled with moonlight, it made it possible for the victim, (PW1) and PW2 to identify the attackers. The matter was reported to the Street Chairman, (PW4) one Abubakar James, who went to the crime scene and found the Appellants and the victim still exchanging words, and the Appellants continuing attacking the victim, which event took place at the homestead of PW1. The matter was then reported to the Police and the victim was given a PF3 and went for medical treatment. As per the evidence by PW3, one Doctor Yusuph Ginorero Makena of Nyakato Dispensary, Musoma, the victim had bruises in her body. PW3 filed in the PF3, which was tendered in evidence at the trial and admitted as Exhibit P1. M/s Gisela submitted further that, the accused themselves stated that they fought with the victim but denied being a source of the squabble. On that evidence, the trial Court was satisfied that the three accused persons/Appellants jointly committed the offence of Common Assault, and that they were properly identified as per the elements established in Waziri Amani Vs. Republic [1980] TLR 250, the intensity of light at the crime scene; familiarity between the Appellants and the victim; exchange of words between the Appellants and the victim; and the distance between them, which was very close, and that there was no obstacle which could have hindered identification. M/s Gisela submitted further that, the trial Court reached its decision by looking at the evidence of the prosecution on the fact of the Appellants going to the home of the victim, PW1 (Anastazia Raphael), insulting her; started beating her up; which event was witnessed by eye witnesses, Page 5 of 14 namely, PW2 (Naomi Maira) and PW4 (Abubakar James). According to M/s Gisela, the trial Court also looked at the evidence of the Defendants who stated that they passed by the home of the accused and that they fought but they were not the initiators of the fight. Both PW2 (Naomi Maira) and PW4 (Abubakar James) confirmed witnessing the Appellants assaulting PWl (Anastazia Raphael). Submitting in reply to the second ground of appeal, M/s Gisela stated that, PW3, one Doctor Yusuph Ginorero Makena of Nyakato Dispensary, Musoma, was the appropriate person to tender the PF3 in evidence and it was received as Exhibit Pl without protest from the accused persons/Appellants. Submitting in reply to the third ground of appeal, M/s Gisela stated that, PW2 and PW4 witnessed the assault at the home of the victim. They witnessed the accused/Appellants attacking the victim by fists and kicks in various parts of the victim's body. Submitting in reply to the fourth ground of appeal, M/s Gisela stated that, as per the evidence on record, the source of the fracas was DWl (Hadija d/ o Ada mu - 1st accused/appellant), insulting PWl (Anastazia Raphael) that she (PWl) was a harlot (Malaya) and that she was going out with young guys; and thereby DWl's relatives started assaulting the victim. According to M/s Gisela, a common intention to assault the victim was established. On the fifth ground of appeal, M/s Gisela conceded that, the learned trial Magistrate did not consider the age of the Appellants when meting out Page 6 of 14 the sentence against them; and particularly the 1st and 3rd Appellants, who at the time of committing the alleged offence were children. On the sixth ground of appeal, M/s Gisela referred this Court to the provisions of section 100 (1) of the Law of the Child Act, 2009, which is to the effect that, where children are jointly charged with an adult, they are tried in the same courtroom but when meting out sentence against them, it has to be according to the age of the accused child at the time of the commission of the charged offence. In rejoinder, the Appellants said that they had nothing to add. On the grounds of appeal and the reply submissions, as well as the evidence on the Court record, one Hadija Adamu (DW1), the 1st Accused/appellant and Anastazia Raphael (PW1), the victim of the common assault, are neighbours, who came to discover they were both sharing a boyfriend. In my considered view and on the evidence on record, this was the main cause of the fighting between them, a clear indication that they were harbouring some hatred against each other. The undisputed facts on record are that, on the eventful day, that is, the 20th of October, 2016 at Nyakato area within the District and Municipality of Musoma in Mara Region, the 1st Accused/appellant, Hadija d/ o Ada mu, accompanied with the 2nd Accused/appellant, Chiku d/ o Ada mu, met with the victim, Anastazia Raphael, along the road near the victim's house. They exchanged abusive words about their boyfriend which, as it turned out, they were both sharing and a fighting ensued between them. The 2nd accused/appellant, Chiku d/ o Ada mu, and the 3rd accused/appellant, Modester d/o Adamu, intervened in the fighting by Page 7 of 14 way of assisting their sister, the 1st Accused/appellant, Hadija d/o Adamu. It is not in dispute that, the 1st, 2nd and 3rd accused persons are relatives. The victim (Anastazia Raphael) having realized that, she had been overpowered by the accused persons/appellants, raised an alarm to which the victim's mother and other neigbhours responded. They successfully managed to stop the fighting between the three accused persons/appellants and the victim. It was the testimony of PW4, the Street Chairman, one Abubakar lames, who went to the crime scene and found the Appellants and the victim still exchanging words, that even after the fighting had been stopped, the victim (Anastazia Raphael) and the 1st accused (Hadija d/o Adamu) continued hurling abusive words at each other. The law on criminal offences in this Country prohibits exchange of abusive words publicly and engaging in a fight in public, which may result into violence and thus ultimately a breach of the peace. It is without any dispute that there was exchange of abusive words between the appellants and the victim and that there was a fight between the Appellants and the victim, which resulted into the victim sustaining some bodily injuries as evident in the PF3, which was received in evidence at the trial court as Exhibit P1, without any protest from the accused persons/Appellants. As per the evidence of PW1 (Anastazia Raphael), the victim, and PW2 (Naomi Maira), the victim (PW1) was attacked by the accused persons and beaten up using fists, kicks, slapping and hitting with a stone. The PF3 (Exh.P1) of Anastazia Raphael (the victim) shows that, the victim was found with bruises over her whole body. Rather unfortunate, the type of Page 8 of 14 the weapon or object which was used to inflict such bruises on the whole of the body of the victim was not indicated by the Medical Doctor (PW3) in the PF3 (Exhibit P1). Instead, in the PF3, the Medical Doctor listed the weapons that were used to inflict injuries on the victim, namely; sticks, stones and kicks. It was not stated if the Medical Doctor was among the persons who responded to the alarm raised by the victim during the alleged attack or attended the victim at the scene of crime so as to be able to name the weapons used to inflict injury on the victim. It is still a mystery to this Court as to how the Medical Doctor whilst examining the victim's body later, came to know of the type of weapons that were used to inflict bruises on whole body of the victim. Professionally, the Medical Doctor could have commented on whether the bruises found on the victim's whole body were inflicted by a sharp or blunt object. The comments by the Medical Doctor on the type of weapons used clearly show that, he just filled in the PF3 of what he had been told by the victim instead of what he discovered while examining the victim. Furthermore, the comments and remarks by the Medical Doctor in the PF3 were rather ambiguous for they are as if they were made after the victim had been treated and allowed to go home. It is in the Court record that, the Medical Doctor who attended the victim one Yusuph Ginorero Makena (PW3) of Nyakato Dispensary, Musoma made a finding that, the victim was also found with malaria, which is normally tested by taking and examining a sample of the patient's blood. It is not clear as to why the Medical Doctor decided to test for malaria on a person who had been brought to him for examination on allegation of being assaulted. It is Page 9 of 14 therefore uncertain in the circumstances whether the victim was treated for the bruises allegedly she sustained in the course of the fighting between the accused person/Appellants and the victim or for malaria before being. allowed to go back home. It was expected of the Medical Doctor being a professional to specifically comment on what the victim had been treated for. It is for the above reasons this Court finds the PF3 which was admitted in evidence before the trial Court as Exhibit Pl seriously wanting in material particulars for having not properly been filled-in properly by the Medical Doctor as to the nature of the examination he had carried on the victim and for the ailment with which the victim had been treated. In the premise, it is highly doubtful if the victim ever sustained any injuries. The PF3, Exhibit Pl is hereby expunged from the record forthwith. In the instant matter, what the prosecution has managed to prove is that, the 1st accused (Hadija d/o Adamu) and the victim (Anastazia Raphael) engaged in a fight after insulting each other and the victim having been called a prostitute "malaya" by the 1st accused for running around with the boyfriend of the 1st accused. The fact of the 1st accused and the victim being neighbours and the fact of these two sharing their love with the same boyfriend is not disputed. It is without doubt that the fact of the shared loved between two neighours is what spurred the fight, which we are not told as to who threw the first blow as between the 1st accused and the victim. I have carefully looked at the proceedings of the trial Court. I am of the firm view that, this was a case fit for reconciliation under the provisions Page 10 of 14 of section 163 of the Criminal Procedure Act; [Cap.20 R.E 2002]. The learned trial Magistrate could have stayed the criminal proceedings and make efforts to reconcile the parties, particularly given the age of the 2nd and 3rd appellants, and the fact that, the appellants were relatives and neighbours with the victim. It is not always that litigation in criminal matters should be resorted to even where petty crimes are involved. The law obliges Courts in such situations to make deliberate efforts to reconcile people accused of petty or minor crimes with a view to maintaining peace and harmony in society. Clearly, in the instant matter, the fight between the 1st accused and the victim having arose out of passion for love upon realizing that they were sharing their love with the same man; and the victim and the accused persons/appellants being neighbours; and further that the 1st and 3rd accused persons were children who had only intervened to assist their elder sister; and that the victim who. was 19 years of age and the 2nd accused person was 20 years of age, and therefore still fairly young persons, reconciliation would have worked out better than incarceration. In the circumstances of this case, the learned trial Magistrate ought to have encouraged reconciliation among them rather than resorting to the black letter law and in course of the reconciliation, if there was any loss or injury sustained, an order for compensation could have been made. I am of the firm view that, the alleged exchange of abusive words and the ensuing fight between neighbours, who were sharing their love with the same man, was not that serious to have warranted a full trial and imposition of Page 11 of 14 " custodial sentence, which as it has turned out, not only it was manifestly excessive but contrary to the law as well. As I pointed out earlier in this Judgment, the prosecution managed to prove that the accused persons/appellants and the victim hurled insults at each other and that they engaged in a fight in public. That being the case, I shall therefore sustain the conviction against the accused persons for the offence of common assault as charged. However, I shall set aside the prison sentence of four years imposed on all the three accused/appellants by the trial Court and substitute with conditional discharge. The reasons for this Court imposing a conditional discharge order against the accused persons/Appellants is that, the custodian sentence of four ( 4) years in prison imposed by the trial Court on each of the three accused persons/appellants and also the order for compensation of Tshs.50,000/ = imposed on all of the three accused persons/appellants were illegal in terms of the provisions of section 240 of the Penal Code, Cap. 20 R.E 2002, under which the three accused persons/appellants were charged, which attract only a maximum custodial sentence of one (1) year upon conviction. On the evidence on record, the offence of common assault was committed in circumstances in which it attracts a conditional discharge upon conviction and not a custodial sentence. Since this Court has found PF3 (Exhibit Pl) wanting and accordingly expunged it from the record, the degree of the injuries alleged sustained by the victim as a result of the fighting between the Appellants and the victim has not therefore been established so as to warrant an order for compensation. Page 12 of 14 • In the whole and for the above reasons, the appeal succeeds to the extent as shown herein. The Judgment and sentence by the District Court of Musoma in Criminal Case No. 235 of 2016 are hereby quashed to the extent as shown herein. The conviction for common assault against the three appellants is hereby sustained. The sentence of four years in prison against the three appellants is hereby quashed and set aside. The 2nd accused/appellant, Chiku d/ o Ada mu, is hereby discharged on condition that, she shall not commit any other criminal offence within a period of one (01) year from the date of this Order. The 1st accused/appellant, Hadija d/ o Ada mu, and the 3rd accused/appellant, Modester d/ o Ada mu, who at the time of the commission of the offence were children, are hereby discharged unconditionally. The order of payment of compensation of Tanzanian Fifty Thousand Shillings (Tshs. 50,000/=) to the victim imposed on each of the three accused persons/appellants by the trial Court is hereby set aside. It is so ordered. SGD: R.V. MAKARAMBA JUDGE 18/12/2017 Date: 18/12/2017 Coram: Hon. Makaramba, J. Appellants: 1st - Present in person 2nd - Present in person Page 13 of 14 lo 3rd - Present in person Respondent: Ms. Bibiana Kileo, Senior State Attorney B/C: · L. Mtaki Ms. Modesta: My Lord, the matter is coming for Judgment. We are ready to receive it. Court: 1. Judgment delivered. 2. Right of Appeal explained. BA ATMWANZA 18/12/2017 Page 14 of 14