20190821 TZHC Dodoma

j 1• IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 77 OF 2018 (Original Criminal Case No. 45 of 2017 of the District Court of Iramba at Kiombol) E DIPJARD LAM ECK ................................................ APPELLANT VERSUS THE REPUBLIC......O............................................ RESPONDENT 2 61612019 & 211812019 JUDGMENT MASAJU, J The Appellant, Edward Lameck, was charged with, tried and convicted of causing Grievous Harm Contrary to Section 225 of the Penal Code, [Cap 16] in the District Court of Iramba at Kiomboi, that on the 251h day of February 2017 at about 2300hrs at Kitukutu Village within Iramba District in Singida Region, unlawfully did cut one Nehemia on her face by using bush knife an act that caused her to suffer injuries; He was sentenced to seven (7) years imprisonment, hence this appeal against his conviction as per the petition of Appeal which is made up of six (6) grounds of appeal including the 5 th ground of appeal which reads, thus: 1 r "5. That the prosecution side miserably failed in discharging their burden of proving the case beyond reasonable doubt, but the trial court went on and convict. The appellant regardless of such a failure" In essence the other grounds of his appeal revolves around the said ground of appeal by their nature. When the appeal was heard in the Court on the 261h day of June, 2019, the layman Appellant appeared in person and adopted his grounds of appeal to form his submissions in support of the appeal in the Court. He prayed the Court to allow the appeal. Mr. Morice Sarara, the learned state attorney who appeared for the Respondent Republic contested the appeal in its entirety on the reasoning that the prosecution case against the Appellant in the trial court was proved beyond reasonable doubt. The Respondent prayed the Court to dismiss the appeal in its entirety submitting as well that the sentence against the Appellant was also lawful though it was the maximum for the offence. In rejoinder, the Appellant maintained his submissions in chief and prayed the court to consider his valid grounds of appeal. He also informed the court he was also facing a murder case as the victim of crime died. By virtue of the testimony by Easter Nehemia (PW1) by the 31s t day of May,. 2017 when the trial against the Appellant began in the trial court, the victim of crime Agness Lameck, was already dead. The prosecution I witness, John Lameck (PW3) and the Appellant in his defence testified that Agness Lameck was dead. It is due to Agness Lameck's death that the Appellant has been charged with murder, in a case which has not yet been heard by the Court. Since the facts of the murder case against the Appellant relates to the incident in which the Appellant allegedly assaulted his sister, the deceased Agnes Lameck, the trial against the Appellant in the trial Court on the charge of causing Grievous Harm contrary to section 225 of the penal Code [Cap 26] was to be withdrawn, once the victim of the Grievous Harm died and the Appellant charged with murder accordingly lest the outcome of the trial of the Appellant for Causing Grievous Harm prejudices the murder case trial in the Court in terms of death causation, if any, pursuant to section 203 of the Penal Code, [Cap 16] bearing in mind that the punishment for murder is death, the legal practice is that a person cannot be charged with murder alongside other offences which attracts lesser sentence. That said, the trial against the Appellant on the charge of Causing Grievous Harm whilst the victim crime was already dead was a: significant procedural irregularity which vitiates his trial. Another significant irregularity of the Appellant's trial on the charge of causing Grievous Harm which irregularity is worth of being commented upon by the Court, though in passing, is that in the charge against the Appellant, the victim of crime is said to be one Easter d/o Nehemia whose Medical Examination Report (PF3) was admitted in evidence as prosecution exhibit "A"! Yet, the prosecution witnesses Easter Nehemia, (PW1), Christiana Nazareth (PW2), John Lameck (PW3) and the Appellant Edward 3 - y Lameck (Dwl) are categorical that the victim of crime is one Agness Lameck who has since died. When all is said and done, due to the significant procedural irregularities observed herein above, by virtue of revisionary powers of the Court the trial against the Appellant was a nullity and the same is hereby so declared along with its record of proceedings, judgment, conviction sentence and the compensation order thereof which are hereby quashed and set aside accordingly. The Appellant:shall remain in prison as a remandee pending the trial, if any, against him on the homicide in the court. 1 N X I, GEORGE M. MASAJU I I H JUDGE lt t V.' IINAP 21/8/2019 4