the republic vs matari simon 2024 tzhc 866 7 march 2024

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 36 OF 2023 REPUBLIC v. MATARI SIMON JUDGMENT 04.03.2024 & 07.03.2024 Mtulya, J.: Mr. John James (PW1) was attacked and injured on head, hands, fingers, and legs by pa/K/aon 3rd October 2022 when he was at his working station at Bweri Water Sewage Centre (the centre) guarding the centre. According to PW1, on the fateful day, at around 00:00 hours, he was invaded and attacked by five (5) assailants who intended to steal solar bulbs at the crime scene. In his testimony in this court, PW1 testified that in the five (5) persons, he was able to identify one (1) assailant called Mr. Matari Simon (the accused) as there was high intensity of solar lights; the attacking incident took almost thirty (30) minutes; and he knows the accused as he used to pass-by at the centre in several occasions. During the attacks, in PW1 testimony, a fight had erupted and managed to censor two (2) fingers of the accused by use of grass- cutter. PW1 testified further that he was badly injured to the extent that he lost his consciousness and gained his senses at Musoma i Regional Referral Hospital (the hospital) and to date he cannot do his traditional work of security guard and farming activities due to damage inflicted on his hands. The incident of attacks to PW1 by the assailants was reported to his boss Babuu Aloyce (PW2) and police authorities in Musoma where police officer, J. 1050 D/Cpl. Salehe (PW3) was involved in preparing Police Form Number Three (PF.3) and investigation of the case. In corroborating the testimony of PW1, PW2 and PW3 were called to testify in the case. According to PW2, he was cell- phoned by police officer called Mr. Nelson and was informed the incident and he rushed to the crime scene where he found PW1 in bad condition and ferried him to the hospital via police station in Musoma. PW3 on his part had testified to have issued PF.3 to PW1, investigated the incident and arrested the accused. According to him, on 3rd October 2022, he was ordered by his boss to go to Bweri area where an informer had spotted the accused and he went Bweri and found the informer who had directed him where the accused was located and accordingly arrested him. PW3 testified further that he had investigated a case file number MUS/IR/3445/2022 on Acts Intended to Cause Grievous Harm to PW1 and finally tendered in the case PF.3, which was admitted as exhibit P.l. Exhibit 2 P.l shows assaults, multiple body cut wounds, multiple bruises and bleeding. The accused (DW1) was brought in the case to reply the complaint of Acts Intended to Cause Grievous Harm to PW1 contrary to section 222 (a) of the Penal Code [Cap 16. R.E 2022] (the Penal Code). On his part, DW1 testified that on 3rd October 2022 at around 22:00 hours, he was passing in his usual foot path at the centre from Lake Victoria towards Bweri Centre and PW1 had left his guarding area and followed him and started to attack him without any justifiable cause. According to the accused on producing his self-defence, he injured PW1 in hand and he also lost his two (2) fingers in the left hand. Following the incidence, in DW1 testimony, he escaped the crime scene towards his home residence, but he had collapsed along the way and later found himself in the hands of police officers. DW1 testified further that he did not enter into the centre intending to steal solar bulbs, but was passing along the foot path in his way from fishing at Lake Victoria to Bweri Centre and PW1 attacked him. However, DW1 testified that PW1 was the first to rush to the police to report the matter. According to DW1, it is PW1 who is supposed to be prosecuted for the indicated offence of causing grievous harm to the accused. 3 In the instant case, parties have produced materials to show that there was attacking incident at the centre in night hours of 3rd October 2022. However, the parties are at contest as to who attacked and caused injuries to another. According to PW1, he was attacked by the accused and other four (4) persons who had appeared at his area of mandate intending to steal solar bulbs, whereas the accused on the other hand testified that he was passing-by along the way from fishing area in Lake Victoria to Bweri Centre, but was assaulted by PW1 to the extent of losing his two fingers on the left hand. The law regulating reliability and credibility of witnesses requires: every witness to be believed and his testimony accepted, unless there are good and cogent reasons for not believing him. There is a bunch of precedents on the subject in this court and Court of Appeal (the Court) (see: Goodluck Kyando v. Republic [2006] TLR 363; Sabato Thabiti & Benjamini Thabiti v. Republic, Criminal Appeal No. 441 of 2018; Republic v. John Mbatira @ Mtuke & Three Others, Criminal Sessions Case No. 181 of 2022 and Republic v. Mroni Samo @ Ryoba, Criminal Sessions Case No. 12 of 2023). The facts in the present case show that PW1 was attacked and injured at his working post in night hours of 3rd October 2022 and PW2 was summoned to corroborate the testimony of PW1 that he was found badly injured at his post in the centre, whereas the 4 accused was not found at the crime scene and no any facts which show that he reported the incident to any authority at the earliest available opportunity. The Republic also marshalled PW3 to testify that he arrested the accused in morning hours of the day of the event which took its course during night hours. Similarly, PW3 had produced P.l to substantiate that PW1 was badly injured, lost his consciousness and treated at the hospital. On the other hand, the accused did not tender any exhibit to show that he was badly injured to extent of losing his consciousness and did not produce any materials or witnesses to indicate that he was at fishing area in the lake at that night hours. Similarly, the accused produced unusual practice of selling fish at night hours starting from 22:00 hours. From the culture in lake regions, fish men go for fishing at night hours and return in morning hours, or else they go for fishing early morning hours and return at noon hours. The practice of the accused in fishing and selling timings leaves some questions unanswered. A reply to the question on who had caused grievous harm to another in the instant case depends on the totality of evidence brought in this court in the case. After considering the totality of evidence brought by the parties in the present case, I am persuaded to believe that the accused had attacked and caused grievous harm 5 to PW1 in night hours of 3rd October 2022 at Bweri area within Musoma Municipality in Mara Region. I am aware the accused had admitted to be present at the guarding area of PW1, but alleged the crime was committed by PW1 against him. This species of defence brought in this case does not introduce a reasonable doubt in view of the strong evidence produced by the prosecution. The defence was brought by the accused to deceive this court (see: Edgar Kayumba v. D.P.P., Criminal Appeal No. 498 of 2017; Republic v. Keraryo Rhobi Busere & Another, Criminal Sessions Case No. 31 of 2022; and Republic v. Peter Ntingwa Peter, Criminal Session Case No. 184 of 2022). The totality of materials brought in the instant case point a finger to the accused to have assaulted PW1. I have indicated earlier in this judgment that this court will always scrutinize the totality of the evidence brought in cases to resolve issues, like the present one (see: Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 and Republic v. Chacha Mwita Mohere, Criminal Session Case No. 141 of 2022). In the end, I am satisfied that the prosecution has proved its case beyond reasonable doubt as per requirement of the law in section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022]. Consequently, I find the accused, Mr. Matari Simon, guilty to the 6 charged offence of Acts Intended to Cause Grievous Harm to the victim, Mr. John James contrary to section 222 (a) of the Penal Code. Accordingly ordered. Judge 07.03.2024 This Judgment was delivered in open court in the presence of accused, Mr. Matari Simon and his learned Defence Attorney, Mr. John Manyama and in the presence of Ms. Happiness Machage, learned State Attorney for the Republic. Judge 07.03.2024 ANTECEDENTS Machage: My Lord, we have no previous record of the accused. However, we pray this court to order stiff sentence to the accused. My Lord, we have reasons: 1. The accused used panga, 2. He directed at sensitive parts of the body head and hands 3. The victim has suffered permanent disability and cannot engage in economic activities; 4. The victim has one (1) child who solely depends on him; 7 5. The victim spent monies in his treatment and incurred a lot of costs, hence we pray him be compensated for the costs and injuries. My Lord, that is all from the Republic. F. H. Mtulya Judge 07.03.2024 MITIGATION Manyama: My Lord, I have had conversation with the accused and said his work is fishing activities and his parents depend on him. My Lord, he said his parents are very old aged 92 years of age and solely depend on him. My Lord, the accused also has a wife and one (1) child. My Lord, the accused was in police custody for eight (8) months. My Lord, during the fight, the accused was injured and lost two (2) fingers. My Lord, losing two (2) fingers is a huge penalty. He is disable now. My Lord, we pray for a lenient penalty for the accused person and if possible, to discharge him. My Lord, we pray so for this accused person. That is all My Lord. F. H. Mtulya Judge 07.03.2024 Accused: My Lord, I am currently disabled person. I have no two (2) fingers in the left hand. My Lord, I have a wife and child. My 8 parents are very old and all depend on me. I pray for a lenient sentence. F. H. Mtulya Judge 07.03.2024 SENTENCING ORDER: The accused, Mr. Matari Simon was arraigned in this court on 4th March 2024 for allegation of Acts Intended to Cause Grievous Harm to Mr. John James (the victim). The incident was alleged to have occurred on 3rd October 2022 at Bweri area within Musoma Municipality in Mara Region. After a full trial, the accused was found guilty of the offence as charged. However, before a sentence could be passed, Mr. John Manyama, learned Defence Attorney and Ms. Happiness Machage, learned State Attorney, were called to register mitigations and antecedents respectively. According to Mr. Manyama the accused is a bread winner of his family comprised of a father, mother, wife and one (1) child, his parents are old aged 92 years; he has been in police custody for eight (8) months; and he lost his two (2) fingers hence he is currently disabled and that is enough penalty hence he may be discharged without any conditions. Ms. Machage on the other hand thinks that, the accused used harp weapon panga; he directed at 9 sensitive parts of the body. The victim has suffered permanent disability; he cannot engage in economic activities; he has a family of one (1) child, and incurred costs during treatment hence he may be compensated. I have read section 222 (a) of the Penal Code [Cap. 16 R.E 2022] and found that any person who found guilty for Acts Intended to Cause Grievous Harm is liable to imprisonment for life. I have also consulted the Tanzania Sentencing Guidelines, 2023, and could not find the offence of Acts Intended to Cause Grievous Harm. However, there are offences of Grievous Harm and Assaults Causing Actual Bodies Harm at pages 39 and 41 of the Guidelines respectively. In the indicated offences, if there is use of weapon and the offence was motivated by gang or there is indication of multiple wounds, the offence is categorized as high level and may invite a sentence from five (5) years. In the present case, there is also complaint that the accused has spent monies on treatment and may be compensated by an order of this court. I am aware that this court is empowered under section 31 of the Penal Code. However, each case depends on its particular facts. In the present case, the facts show that the victim had suffered serious attacks to cause permanent disability. He may I receive an order of compensation. 10 After considering the totality of the materials registered in the present case, mitigations and antecedents, I am moved to sentence the accused to four (4) years imprisonment from today, 7th March 2023. I further order the accused, Mr. Matari Simon to pay the victim, Mr. John James a total of Tanzania Shillings One (1) Million (1,000,000/=) for causing permanent disability to the victim. It is so ordered. . H. Mtulvj Judge 07.03.2024 This Sentencing Order was pronounced in Open Court in the presence of the accused, Mr. Matari Simon and his Defence Attorney, Mr. John Manyama and in the presence of Ms. Happiness Machage, learned State AttornejUpr the Republic. Judge 07.03.2024