CRIMINAL SESSIONS NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL SESSION NO. 143 OF 2022 REPUBLIC COMPLAINANT VERSUS HUSSEIN ISSA MUNGAYA 1st ACCUSED PERSON MOHAMED JUMANNE HASSAN 2nd ACCUSED PERSON JUDGMENT 13/09/2024 & 10/ 10/2024 NDUMBARO, J The two accused persons, Hussein Issa Mungaya and Mohamed Jumanne Hassan are charged with the offence of MAIM contrary to section 222 (a) of the Penal Code [Cap 16 R.E 2019]. It was alleged by the prosecution that on 26th June 2021 at Sakina kwa Idd area within the City, District and Region of Arusha, the accused persons willfully and unlawfully caused permanent disfigurement to one MOINAN D/O PARSEKO @ KONE by strangling her neck until she lost conscious and thereafter turned a gas stove, covered her with a blanket and burnt her using the gas stove, the act which caused her to sustain extensive burn injuries on her neck, abdomen, upper part of both thighs breasts and left arm. When the information was read over to the accused persons, they pleaded not guilty thereto. In court, both parties were represented. The Republic was represented by the learned State Attorneys Mis. Eva Manga and Miss. Neema Mwijage. The 1st accused person on the other hand enjoyed the legal services of Advocate Fridoline Bwemelo assisted by Advocate Peter Nyamwero. The 2nd accused person stood represented by advocate Nelius Lugakingira. It should be noted that this case was partly heard by Hon. Mwipopo, J. However for reasons that were beyond control, PW1 who is the victim could not proceed with cross-examination due to her health problems and she had to undergo medical treatment. As the time scheduled for the criminal session had lapsed this case was scheduled to proceed to the next session under section 299 (1) of the Criminal Procedure Act Cap 20 R.E. 2022. In proving their case, the prosecution summoned a total of six (6) witnesses to wit; Moinan Parseko @ Kone (PW1), Langasi Majuka Malkiseri (PW2), Christina Guo (PW3), Keneth Junior Lambert (PW4), Partick Uroki (PW5) and F.2467 Detective Sargent Henry (PW6). The defence on the other hand had two witnesses; the 1st accused person and the 2nd accused person. The prosecution case is not very complicated as extracted from the record and the witnesses. PW1 in this case is the key witness and the victim of the offence alleged to have been committed by the accused persons. According to her testimony, she had love affairs with the 1st accused person although they had not yet been married. It was her testimony that the 1st accused person's parents had already gone to her family for the initial stages of introduction and payment of dowry. It was her further evidence that, after the 1st accused person had introduced himself to her parents, he suddenly changed his behaviour and he became so jealous of her and started assaulting her. PW1 got tired of the behaviour of the 1st accused person and decided to end her relationship with him. This also went along with the shifting of PW1 to another house located at Sakina Kwa Idd. PW1 also identified the 2nd accused person as a friend to the 1st accused person whom she used to meet him together with the 1st accused person and at times both the 1st accused person and the 2nd accused person assaulted her. On the fateful day, at around 09:00 PW1 was in her room when she heard someone knocking the door, she went to open and the 1st and 2nd accused persons entered her room. She took her phone to call for help when the 2nd accused person held her hands behind her back and the 1st accused person started beating her on the stomach using his fist and strangled her until she lost consciousness. Later on, PW1 woke up and found she was laying on the floor covered with a blanket which was burnt and the gas stove was still on. She noted that she was also burnt into different parts of her body and she was in great pain. The room was also full of smoke. She tried to open the door but unfortunately, it was locked, therefore she decided to seek for help through the window. Her neighbours PW3 and another one by the name of Ester came to help her. Another person who also came to help PW1 was PW5 who according to his testimony was called by PW4 who told him that PW1 had called him and told him that the 1st accused person had invaded her house and therefore PW4 told PW5 to go to the house of PW1 to help her. After they took PW1 from the house they went to Ngaramtoni Police Station and after they were issued with a PF3 they took PW1 to St. Elizabeth Hospital for treatment. Another prosecution evidence is that of PW2 the doctor testified that on 24/06/2021 he received a patient who is PW1 and she was burnt. According to his testimony, PW1 was conscious but she was speaking with difficulties and she was in pain. PW2 further stated that the parts of the body that were burnt were breasts, stomach, private parts and thighs. He also stated that the level of burning was the 3rd degree of burning meaning that the three layers of PWl's skin were burnt. PW2 also tendered the PF3 which was admitted in court as exhibit "PI". Another incriminatory prosecution evidence is that of PW6 who took the statement of both PW1 and the 1st accused statement. According to his testimony, the 1st accused person confessed to him that he was in a love affair with PW1 and he had quarrels with her as PW1 had another relationship with another man by the name of Junior. PW6 went further to state that the 1st accused also confessed that on the material date, he burnt PW1 with a gas stove due to his jealousy. PW6 also testified that he arrested the 2nd accused person at Monduli Bus Stand and he did not record his statement. The court also made observations over the body of PW1 and it was observed that she was deeply burnt from her breast parts, stomach, and thigh. Her private part was blocked, her labia totally burnt, and she still had unhealed wounds in her hips and right elbow joint. It was further observed that the burnt scars spread from the breast, and stomach down to the upper thigh. The right breast nipple was totally gone, and the lower part of her breasts burnt. The defence version of the story goes as follows; DW1 admitted being in a relationship with PW1, however he stated that the relationship was called off by PW1 and from there he did not know where PW1 was living and he had nothing to do with what happened to PW1. DW1 also denied knowing the 2nd accused person and stated that he just met him at the Police Station. DW1 also testified that while at the police station, he was subjected to torture and he was forced to tell the truth. DW2 on the other hand denied the name of Mohamed Jumanne Hassan as his name, he stated that his name was Makoro Masanja Rufunga. He stated that he does not know either PW1 or the 1st accused person, and he is not connected in any way with what has happened to PW1. According to his testimony, he was arrested at Monduli for the offence of theft and he was later taken to USA River Police Station where he met the 1st accused person. He therefore prayed this court to set him free. 6 At the end of the trial, the parties through their learned counsels filed their closing submissions which I will consider while determining the issues hereunder; From the above facts, the main issue for determination by this court is whether the prosecution met the requirement of the law to prove the case against the accused persons beyond reasonable doubt. It is a principle of law that, in proving any criminal offence, the prosecution bears the burden of establishing that, the offence was committed and it is the accused persons and nobody else who committed the offence charged. Starting with the first issue as to whether the offence was committed. In this case, the accused persons are charged with the offence of MAIM under section 222 (a) of the Penal Code. For the purposes of this case, I find it apposite to have the section reproduced hereunder for ease of reference; "222. Any person who, with intent to maim, disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the lawful arrest or detention o f any person- i(a) unlawfully wounds or does any grievous harm to any person by any means whatever;" Now the question that follows is whether the offence of MAIM as reflected under the above provision of the law was committed and if it was committed to whom was it committed. The answer to his question is found in the evidence of PW1 who in this case is the victim. According to her evidence, she testified that different parts of her body were burnt by a gas stove and the burning caused some disfigurement including her thumb being amputated, burning of her private parts, and burning of her breast which also led to the burning of her nipples therefore she cannot breastfeed, disfigurement in her skin on the part of the stomach and therefore she cannot conceive. She further testified that she is still undergoing medications as she still has some fresh wounds on her right elbow joint. This piece of evidence is supported by that of PW2, the doctor from St. Elizabeth Hospital who testified to have received PW1 on 24/06/2021 and who was having burning wounds. According to him, PW1 was burnt on the different parts of her body and the burning was 3rd degree meaning that the three layers of her skin were burnt. PW2 after treatment filled the PF3 which was admitted by the court and marked as exhibit PI. I have had enough time to go through the exhibit and the report shows that she had multiple bruises on the neck, and sustained burning injuries on the abdomen, upper part of both thighs, right part of the elbow and arm. This court also made an observation of PWl's body and the following observations were recorded; she was deeply burnt from her breast parts, stomach, and thigh. Her private part was blocked, her labia totally burnt, and she still had unhealed wounds in her hips and right elbow joint. It was further observed that the burnt scars spread from the breast, and stomach down to the upper thigh. The right breast nipple was totally gone, and the lower part of her breasts burnt. From the above analysis of the testimonies of PW1, PW2, exhibit PI and the court observation of the body of PW1 this court is satisfied that PW1 was grievously harmed through burning on her different parts of the body and that the burning has caused her permanent disfigurement. Next for consideration is whether the alleged offence was committed by the accused persons. It should be remembered that in this case, it is PW1 who is the eyewitness. According to her testimony, on the material date, the accused persons went to her house and knocked on the door, she went to open and both the 1st and 2nd accused persons entered her house. Thereafter they assaulted her and the 1st accused person strangled her neck and she lost consciousness. After a while, she woke up and found herself laying on the floor and her body was burnt with a gas stove as it was still on. PW1 tried to open the door, but it was locked and at that time the accused persons had already left. As to whether it is the accused persons who set PW1 on fire and burnt the different parts of the body, this court is of the view that since the last persons to have assaulted PW1 were the accused persons until she lost consciousness and even when she woke up she found herself burnt and the door was closed it is the firm view of this court that it no one other the accused persons who had set PW1 on fire and left her helplessly. It should be remembered that PW1 in her testimony stated that she was in love affairs with the 1st accused person before they broke their relationship. This fact was undisputed by the 1st accused person who also testified that PW1 was his lover before they broke their relationship. In other words, this piece of evidence suggests that PW1 and the 1st accused persons were familiar and they knew each other as they were lovers. Therefore, there is no way PW1 would have mistakenly identified the 1st accused person when he entered the house of PW1. PW1 also identified the 2nd accused person as the friend of the 1st accused person and that on several occasions PW1 met the 1st accused person with the 2nd accused person. Therefore, even on the fateful day, when the 1st accused invaded the house of PW1 it was not the first time to have seen him and therefore she properly identified him. I have considered another piece of evidence which has this court believe that it is the accused persons who committed the said offence, this is the evidence of PW4 and PW5 who introduced themselves as the friends of PW1. According to their testimonies, they stated that PW1 had told them that the 1st accused person was assaulting her and she wanted to break the relationship. Actually, they are the ones who helped her to look for another house at Sakina Kwa Idd. This piece of evidence suggests that the love relationship between PW1 and the 1st accused person was not smooth and it was sore, and even in his defence, the 1st accused person stated that PW1 had told him that she wanted to break their relationship. The 1st accused person also stated that he was once called by a person and he was told to leave PW1 alone. Considering the circumstances of these testimonies one would say that out of grudges arising from the brakeage of the love relationship between PW1 and the 1st accused person, the accused persons did commit the alleged offence. I have also considered the defence of the 1st accused person that he is not associated with the commission of the offence as he did not know the residential house of PW1 that is stated to have been at Sakina kwa Idd. To me, this evidence is not watertight enough to have the prosecution evidence shaken on the reason that in this world full of technology it is now very easy to trace any location. Therefore, the fact that PW1 had shifted to another place at Sakina kwa Idd could not preclude the accused persons to have traced her whereabouts and finding out where she was living. I have noted that the 2nd accused person repudiated the name of Mohamed Jumanne Hassan and stated that his name was Makolo Masanja Rufunga and that he was arrested at Monduli for the offence of theft. The 2nd accused person also denied knowing the 1st accused person and PW1. Well, this might be his defence to exonerate him from the charges facing him. But, again, this court is not satisfied with such a defence as there is no other supporting evidence to justify the said defence. Therefore, this piece of evidence to my firm view has not discredited the evidence of the prosecution witnesses. In the result and for the afore-stated reasons, I am of the opinion that the offence of MAIM charged against the 1st accused person and 12 the 2nd accused person has been proved beyond reasonable doubt. I accordingly find them guilty and convict them as charged. It is so ordered. JUDGE 10/10/2024 SENTENCE This court having convicted the accused persons of the offence of MAIM contrary to section 222 (a) of the Penal Code [Cap 16 R.E 2019]. It is now the duty of the court to assess appropriate sentence by considering both aggravating and mitigating factors. Ms. Eva Manga for the Republic though did not have any record in relation to the accused's previous conviction yet she prayed for imposition of unmerciful sentence against the accused persons on the reason that the offence has caused permanent disfigurement to the victim, Mis. Eva also stated that the victim has suffered trauma and she is still undergoing medication. The Victim is also incurring expenses in her treatment and according to her the offence could have even cause the death of the victim. She therefore pleaded for unmerciful sentence against the accused persons. 13 The accused persons through the learned counsel, Mr. Nelius Lugakingira for the 2nd accused person also holding brief of advocate Fridoline Bwemelo for the 1st accused advanced the following mitigating factors; First, the accused persons are the first offenders and there are no any other previous records. Second, the learned counsel pleaded that the time the accused persons have spent in custody that is three years to be considered and that the accused persons have shown remorse. Third, the counsel also stated that the accused persons are young men and energetic who are depended in the development of the national economy. Fourth, the councel also stated that the 2nd accused person is a father and also his sick mother depend on him, he therefore prayed for a lenient sentence to the accused persons. I have considered thoroughly on the commission of the offence by the accused persons to the victim, in particular on the observation of this court with regard to the disfigurement of the victim's body. I have also taken into consideration the offence which was committed would have led into the death of the victim, and even at the moment, the victim is still undergoing medical treatment. It is therefore my opinion that the level of seriousness of the offence is high level and the actual sentence that may meet ends of justice is the term of TWENTY-FIVE 14 (25) years imprisonment. Pursuant to section 348 (1) of the Criminal Procedure Act Cap 20 R.E 2022, I further make an order that the accused persons to pay compensation to the victim one MOINAN D/O PARSEKO @ KONE, each accused person to pay Tshs. Five million 5,000,000/=). The imposed sentence to start running from when the accused persons were placed in custody that is on the 10/08/2021. Order Accordingly. D. D. NDUMBARO JUDGE 10/10/2024 Court: Right of appeal to the Court of Appeal of Tanzania fully explained to the parties. D. D. NDUMBARO JUDGE 10/10/2024 15