19910724 TZHC Dar es Salaam

IN ~E 1HGH Cl 1URT ;:F T-ANZ.ANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMI!'JAL APPEAL 119/9) ORIGINAL CRIMINAL CASE NO 235 .OF 19'.39 CF THB DISTRICT C:JUUT OF KILOMBERC DISTRICT AT IFAKARA: ££FURE, C.A. KJl1;BA DISTRICT MAGISTRATE THE DIRECTGR ... F PUj3LIC PR0S_t;CUTI0NS •••••••••• AP.PtLLilliT :versus MIRAJI AHMAD MTUMBUKA ............... ••.•. , .••••• ·.RESPC':NDENT JUDGMENT" ' RUBAMA;J~ . MIRAJI s/o AHMAD MTUMBIKA was charged with and·· convicted of grevioua harm c/ s 225 of the Penal Code. He· was sentenced to pay 3, :>Y'/- ( three thousand shillinis only) or suffer twelve months imprisonment ii default. He was f·urther ordered to pay to the victim of the violent crime JONISIA . d/o· MAKUA 5-..,J0/- (five thousand shillings only) as compensation. The Director of Public Prosecutions was dissatisfied with ·the sentence and has appealed to this court maintaining that in the circumstances of this, the imposed sentence was mantfestly inadequate. On the evidence on record, the respondent was properly convicted of causing grevious harm to the complainant. He had, without pJ0vocation, attacked the complainant a formeT wife of his, with·an axe c1, the head~ By the evidence of more than a prosecution witness the axe La·d remain~d imbedded on the head of the complainant_ and had to be remov~d by peoP,le other than the respondent following the attack. The medical evidence· (exhibit "A") details that the out wound was on the "fore h-?ad" 11 1) qm. long and deep to the Brain tissue." Sentencing the respondent, the trial magistrate stated: "The accused is a first offender. He has assaulted his wife ar:d asked for pardon. He has t·~ pay (3 1 J.U/-) thr,ee thousand shilli~gs fine or t"l'el ve months imprisonment and pay 5 ,:s::" 1 / - five -,:!'lou~and shillings as compensation to complainanto 11 I see no mitigating factors worthy of letting the respondent gJt off this lightly• The respondent deserved to be sentenced to a much sti:l:fer sentenee; The record shows that the respondent 1 s brutal act was caused by the matrimonial problem he had had with the complainant; the two We'.H .!!.21 liv.~ng together as hu.sband and wife. The attack was the respondent I a -wa.Y of punishing the complainant • .!£!! it was a very beastly attack - aLJ noted above the eut was "h) cl.tl •. long and deep to the brain tfssue" and Y1 _the 11 forehead. 0 ... /2-. ....... - 2 The doctor who handled the complainant as 4.~ shown on exhibit "A" remarked that "The outcome of •.'this 'inj\1ry can I t be de tided i .. at the moment." I read frou this medical report that the complainant, a woman was dis!iqured- she has been left with a big and needless to state ugly scar on her forehead for the rest of her life - which life would more likely than not be interieared with by the injury - the out having gone "deep to the brain tissueih The person that has ~aused this injury should· not have been let off as lightly· as the trial court did f6r f~ar of appearing to.oundone such beastly actions. A deterrent sentence to the respondent and others of his mind should·have been imposed. The imposed sentence is, as very properly submitted by Mr. Matupa, learned State Attorney ·for the Republic, manife1'1 inadequute. It is accordirliy set aside and in its place imposed a eentence of .1fili. YEARS imprisonment. The order of compensation to be paid to the complainant by the accused in the sum of 5,c:-:;/- is also set aside. It is grossl¥·inadequate. I say so fully accepting the truth t~at such orders. are .no bar to the complainant from going to court to a.sk £or damages. However once a criminal court feels the need exists for ma~ing orders of compensation, those made orders should re.fleet realism. I order that the accused pay the complainant 2·),,)1'"J/- compensation. c·-,."i . ~~'-'-'~ ~~~~ YAHYA RUB'Am.A JUDGE · 24/7/91 Coram: RUBAM.ii,J. Mr. Karoba S.A. for Republic Respondent absent \. \.' . ~---... , Judgment delivered. ~~~,-:c~~ JUDGE 24/7/91 ORDER: w/A to issue for arrest and the ir:iprisonwent of the respondent. DAR ES SALAAM 24th July, 1991.