CRIMINAL APPEAL NO 97 OF 2022

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 97 OF 2022 (Originating from Criminal Case No. 86/2022 of the District Court of Nanyumbu at Nanyumbu) JOSEPH ALFRED SIMON......................................... APPELLANT VERSUS THE REPUBLIC.................. RESPONDENT JUDGEMENT Date of last Order: 14.08.2023 Date of Judgment: 22.11.2023 Ebrahim, J.: The appellant herein was charged and convicted for the offence of grievous bodily harm contrary to Section 225 of the Penal Code, Cap 16 R.E 2022. It was alleged by prosecution that on 02nd day of April, 2022 around 1500hrs at Mraushi village within Masai District in Mtward Page 1 af14 Region the appellant grievously harmed one Felix Betram Daudi on different parts of his body and caused him an amputation of his left eye. The brief facts of the case as could be discerned from the evidence on record is that the victim in this case PW2 was the fiance of PW3 who is alleged to be the former wife of the appellant. On 02.04.2022 at 15:00hrs, the fateful day, PW2 and PW3 were watching movie at Salome's home (PW3) by using his smartphone. Suddenly there appeared the appellant who opened the door and went in. He did not say anything. Later, he went to the kitchen and took a huge piece of wood (kuni) and stabbed PW2 on various parts of his body including on his left eye. He was in severe pain and scrambled for help, PW3 assisted him. He went to Lukuledi police post where he was issued with PF3 then they went to Mraushi Dispensary. He was stitched on his head with 3 stitches i.e., 1 stich on his nose and eye drops. He was told to go back to the dispensary on 08.04.2022. PW2’s eye’s condition got worse and on 15.04.2022 he was referred to Mkomaindo Hospital for further treatment. Thereafter on 19.04.2022 he was referred again to St. Benedict Ndanda Hospital to see an eye specialist. On 20.04.2022, he Page 2 of 14 attended the hospital and after the examination of his eye it was found that it is damaged to the extent that it had to be removed in order to protect the right eye from being damaged as well. The appellant denied his involvement but admitted that on the fateful day he found PW2 [the victim) with PW3 whom he alleges to be his wife having sexual affairs. He decided to take clothes and the phone of PW2. PW2 resisted and it was when he pushed him and banged his head on the left side at the edge of the door and he got injured. He decided to go out of the house and locked the door while PW2 was inside. Prosecution called four witnesses. The trial Magistrate after evaluating the evidence from both sides found the appellant guilty and sentenced him to three (3) years imprisonment. He was further ordered to pay compensation of one million and five hundred Tanzania shillings (1,500,000/=) to the victim. Aggrieved by the decision of the trial court, the appellant lodged an appeal in this court raising three (3) grounds of appeal and four (4) additional grounds of appeal. However, the grounds of appeal can Page 3 of 14 be condensed into four grounds of appeal that there was no evidence of the weapon used, self-defence evidence was not considered, the evidence of PW2 and PW3 is contradictory and that the offence was not proved beyond reasonable doubt. At the hearing of the case, the appellant appeared in person, unrepresented. The respondent was represented by Mr. Mwapili, learned State Attorney. The appellant prayed to adopt his grounds of appeal and prayed for the court to consider them. Responding to the grounds of appeal, Counsel for the respondent grouped the seven grounds of appeal into four. The 1st ground of appeal was whether prosecution prove the case beyond reasonable doubt. He submitted that the appellant was charged under Section 225 of the Penal Code, Cap 16 R.E 2019. He cited the case of Abdullatifu Leonard vs R (Criminal Appeal 73 of 2021) [2022] TZHC 10924 (8 July 2022) which illustrated that injury must be inflicted to prove grievous harm. He submitted that to prove that injury was inflicted to the victim, PW2 explained the ordeal occurred to him on 02.04.2022. He further submitted that the evidence of PW2 was Page 4 of 14 corroborated by PW3 as stated at page 13-14 of the trial court proceedings. Moreover, the appellant confessed before PW4 as stated at page 15 of the trial court proceedings as per exhibit P2 (Cautioned Statement) of the appellant. PW1, an eye specialist at page 8-9 stated that the victim (PW2) was operated and his left eye was removed. The learned State Attorney argued that the act amounts to grievous harm as per Section of 5 of the Penal Code. He further argued that Section 18A (1) read together with Section 18B (1) of the Penal Code Cap. 16, allows a person only to use reasonable force in self defence. Referring to the circumstances of the instant case he said there was no any fight but the appellant decided to beat the victim (PW2). He responded on the 2nd additional grounds of appeal that the issue was whether there was contradiction of evidence of PW2 and PW3. The learned State Attorney submitted that both PW2 and PW3 said that after the incident they went to report the matter at Lukuledi Police Station. PW2 stated that they went to VEO before going to the police. PW3 said that she firstly passed to her parents before going to Page 5 of 14 the police. He argued that the contradiction is minor and it does not go to the root of the case. He referred to the case of Dickson Anyosisye vs Republic (Criminal Appeal 155 of 2017) [2019] TZCA 387 (5 November 2019} at page 9-10, CAT. Responding on the 3rd additional grounds of appeal he submitted that the issue is whether PW3’s parents and VEO were material witnesses. He referred to the case of Aziz Abdallah vs. R [1992] TLR, 71, on none calling of important witnesses without valid reasons. He submitted that the parents of PW3 and VEO were not material witnesses. Submitting on the 4th ground of appeal on the issue that the duty of this court to re-evaluate the evidence. He submitted that this being the first appellate Court, it can re-evaluate the evidence as per the case of Leonard Mwanashoka vs. R, Criminal Appeal No. 226/2014- CAT. He thus prayed for the appeal to be dismissed. In rejoinder, the appellant prayed to be set free. After following the rival submissions; find that the bone of contention is whether prosecution managed to prove: its case on the required Page 6 o f14 standard by law Le., beyond reasonable doubt; and that self defence evidence was considered. It should be noted however that the appellant's conviction was predicated upon his admission in the cautioned statement. Looking at the proceedings, it is amply revealed that, PW4 vividly recorded the appellant’s cautioned statement after the lapse of four hours. According to him, it was on 28.04.2022 at 1 6:00hrs when he started interrogating the appellant buI exhibit P2 (cautioned statement) have no record of neither the time the recording started nor when it ended Section 50 (1) (a) of the Criminal Procedure Act [CAP. 20 R.E. 2022] is very clear on the time frame to which the accused person is to be interrogated which is four (4) hours from the time when the accused was taken under restraint. Failure to write the time when the interrogation began in my considered view is fatal as it could also be possible that the statement was recorded beyond the four hours as required by the law. In the event, Exhibit P2 which is the appellant’s cautioned statement is hereby given to weight at this court for the Page 7 of 14 reason that the same cannot be conclusively relied upon to have conformed to the requirement of the law. The sensitivity of conforming to the law in criminal Justice cannot be over emphasized particular/ the circumstance where it is said that the accused pleaded guilty. The mere narration of the officer who recorded the statement in so far as the cautioned statement is concerned is not enough. The records have to speak to themselves. More so, it would also confirm the voluntariness of the recorded statement. In adjudicating the matter, I find it pertinent to subject the entire evidence into scrutiny in mind of the fact the trial Magistrate had the opportunity to observe the demeanour of the witnesses. PW2 testified before the court the ordeal he endured on 02.04.2022 after the appellant came at PW3's home and attacked him with a piece of wood (kuni) on different parts of his body and on his left eye. PW3, told the trial court that she is separated with the appellant since March, 2022 and she has another fiance called Mwanaidi. She admitted to be PW2 present fiancee since 30th March, 2022. She also testified that Page 8 of 14 on 02.04.2022 at about 15:00hrs at her home she was with PW2. The appellant went to her home when he found them, he went to the kitchen and took a piece of wood (kuni). He went to beat PW2 on his different parts of his body. She was scared and she run to her parents for help. They were advised to go to the police post, where they found the appellant with the clothes of PW2 at the police who had gone to report adultery. PW2 was issued with PF3. PW1, An Ophthalmologist recalled to have received and treated PW2 on 20.04.2022 at around 10:00hrs. He said PW2 told him that he was beaten by the appellant by a piece of wood (kuni) and he stiched him three stitches on his head and nose. PW1 explained that after examining the cornea, he found that it was turn off, interior eye chamber had pus instead of fluid. So, his left eye cornea needed operation, On 21.04.2022 they operated him, and they removed PW2's left eye in order to save his right eye. He tendered PF3 which was admitted as Exhibit Pl without objection. PW4, testified to have interrogated the appellant on 02.04.2022 and the appellant confessed to have pushed PW2 towards the edge of the angle of the door panel where he damaged his left eye. Page 9 of 14 On his defence, the appellant admitted to have gone to PW3’s house only to find PW2 having an affair with his wife (PW3). He took PW2's clothes and phone and when PW2 resisted he pushed him away and he banged his head on the edge of the door and got injured. Then he went out and left PW2 locked in the house. Indisputably is the fact that PW2 was injured on 02.04.2022. PW2 testified to have been beaten by a piece of wood (kuni) by the appellant. PW3 who was eye witness testified to have seen PW2 being beaten on his different parts of his body and on the left eye. PW1 also testified to have treated PW2 from those injuries inflicted on his left eye. The appellant said PW2 banged himself on the door. However, he admitted that he pushed him away. Going by the testimonies of PW1, PW2, PW3 and the appellant himself; it is obvious that the appellant had attacked PW2. Responding to cross-examination questions from the appellant, PW2 told the court that he could not manage to collect the piece of wood used by the appellant from the police. As a matter of fact, it goes without saying that PW2 was in a difficult situation to remember to collect a piece of wood. Further to that PW3 was an eye witness who witnessed the appellant attacking Page 10 of 14 PW2 with a piece of wood (kuni) which he took from the kitchen. Thus, I hereby dismiss ground of appeal that there was no weapon tendered in court. There is enough evidence to confirm the type of weapon used by the appellant to attack PW2. On the issue of self defence; Section 18A (1) (a) of the Penal Code [CAP 16 KE. 2022] provides that: - Subject to the provisions of this Code, every person has the right- fa) to defend himself or any other person against any unlawful act or assault or violence to the body; or" [Emphasize added] The above section provides for the right of self defence where any other person is doing unlawful act or assault or violence against another person. In the case at hand and as the court records would reveal, the appellant is the one who attacked PW2 and stabbed him with a piece of wood (kuni). For that reason, I equally dismiss the defence of self defence. On the noted contradiction between the evidence of PW2 and PW3 I subscribe to the submission by Mr. Mwapili that PW2 and PW3’s Page 11 of 14 contradiction on evidence was minor which did not go to the root of the case. In the case of Maramo Slaa Hofu and Three Others vs. The Republic, Criminal Appeal No. 246 of 2011, CAT at Arusha it was observed that not every discrepancy will cause prosecution’s case to flop. Also, the Court of Appeal in Dickson Anyosisye vs Republic (Criminal Appeal 155 of 2017) [2019] TZCA 387 (5 November 2019) it Was held that; - "We have pronounced ourselves in a number of decisions that contradictions in the testimony of witnesses which will affect the prosecution case are not those which are minor but only those which go to the root of the case". Thus, 1 dismiss the ground of appeal. In proving the offence of grievous harm there are three ingredients which the prosecution has a duty to prove. These are; (a.) The appellant caused injuries to the victim (PW2); (b.) The injuries amounted to grievous harm; and (c.) The grievous was unlawfully done. Looking at the trial court's evidence as above stated, the injuries sustained by PW2 which were caused by the appellant are injuries Page 12 of 14 amounting to grievous harm. PW3 an Ophthalmologist (Eye Specialist) proved to the court that PW1 had sustained injuries which amounted to grievous harm to the extent that on 2T .04.2022 they had to remove PW2 left eye in order to secure his right eye Exhibit Pl - PF3). The grievous harm caused by the appellant during the incident was unlawfully done and this court has also ruled against the defence of self defence. As per the evidence of PW2, PW3 and the appellant; it is the fact that the appellant had a relationship with PW3 although there was no any documentary or oral evidence which was tendered in court to prove that they were married to each other. If at all, PW3 told the trial court that her self and the appellant separated. The appellant alleges that PW3 and PW2 were committing adultery that why he decided to do what he did as a self defence. As we know that no one Is above the law. So, the appellant had a duty to report the matter at the proper channel instead of injuring PW2. From the above stated reasons I agree with the learned State Attorney that the case has been proved beyond reasonable doubt. Page 13 of 14 I have considered the facts of the case on how the appellant, unlawfully and wildly stabbed the victim (PW2). It has not been disputed that the left eye of the victim (PW2) has been removed and he is left with one eye. No doubt the pains the victim suffered were unfathomable. Considering the fact that under Section 225 of the Penal Code the appellant could face up to seven (7) years imprisonment, I think in all fairness that the sentence of three (3) years imprisonment befits the offence committed. Having found as above, the appeal lacks merit. Accordingly, the appeal is dismissed. I uphold both the conviction and sentence as per trial Court’s decision. R.A Ebrahim JUDGE Mtwara 22.11.2023 Page 14 of 14