jacklini hamisi vs hawa yasini 2019 tzhc 2157 15 august 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT KIGOMA (Kigoma District Registry) CRIMINAL REVISION NO. 2 OF 2019 (From Original Criminal Case No. 68 of 2018 of the District Court Kigoma at Kigoma) JACKLINI D/O HAMISI................................................. APPLICANT

VERSUS HAWA D/O YASINI................................................... RESPONDENT

JUDGEMENT Dated 15/08/2019 & 15/08/2019 MATUMA J. This judgement results from the Revision by the Court suo motto in which honourable Judge Incharge (I.C. MUGETA, J.) in his usual inspection of court business at the RM's Court on 29/07/2019 met the applicant Jackline Hamis serving the community service at the said court. The applicant had a baby at her back while continuing with cleanness as part of the execution of her sentence. Having listened to her story, the hon. Judge incharge inspected the court record and ordered the revision proceedings hence the instant one. I was assigned to handle this revision. At the hearing of this revision the applicant and the respondent appeared in person and Shabani Juma Masanja learned State Attorney appeared for i the DPP who was summoned by the Court being the custodian of all Criminal Prosecutions in the country. The tittle of the parties as Applicant and respondent respectively has been created by the court itself for easy of reference. At the trial Primary Court of Uvinza, the applicant was charged for assault causing actual bodily harm c/s 241 of the Penal Code, Cap. 16 R.E. 2002. she was alleged to have assaulted Hawa Yasin on the 4/10/2018 at 09.00 hours at Uvinza hamlet in Uvinza District within Kigoma Region. At the end of the trial, the applicant was found guilt of the offence, convicted and sentenced to pay a fine of Tshs.

25,000/= in default to serve three months custodial sentence. In addition, she was ordered to compensate the respondent Tshs 50,000/= being costs for treatment and pains suffered as a result of the alleged assault. The respondent appealed to the District Court as she was dissatisfied with the sentence whereas the District Court enhanced the sentence to one year custodial with no option of fine and increased the compensation from Tshs 50,000/= to 700,000/=. As the matter has been initiated by the court suo motto the parties were called by the court to address generally on the propriety and or correctness of the proceedings and judgments of the two lower courts below i.e. the primary court and the District Court. The applicant Jackline Hamis submitted generally that she was not satisfied with the decision of the two lower courts as there was no proof of arbortion, there was no evidence of injuries to the respondent and that the compensation awarded against her was also not justified^ 2 The respondent Hawa Yasin on her party resisted the revision and argued that she was not satisfied with the decision of the primary court and that is why she appealed to the District Court. She maintained that she was assaulted by the applicant which resulted into her loosing her pregnancy which was aged three months. She also submitted that the compensation awarded to her against the applicant at

the trial primary court which was Tshs. 50,000/= was not enough compared to the costs she spent on treatment, bus fares, accommodation and food at the guest house and hotel as well. She was of the view that the compensation raised to her by the District Court which is Tshs. 700,000/= was fair as she spent almost 500,000/=. The learned state attorney Mr. Shabani Juma Masanja faulted the findings of the District Court and submitted that the judgment of the District Court was composed in disregard to the evidence on record. He was of the view that there was no evidence whatsoever that the respondent was pregnant and that there was an abortion. He further submitted that even the tendered PF3 at the trial court contradicted the evidence of the victim herself as it states that the victim was pregnant aged five months while the respondent claimed to have pregnancy of three months. Also the PF3 did not indicate any abortion. He farther submitted that even PW2 who was the husband of the respondent did not give evidence that his wife the respondent was pregnant. The learned state attorney further submitted that the case was. wrongly tried by the Primary Court because it involved experVeVidence which 3 should have been tested in the District Court. He winded up by impeaching the proceedings of the District Court which denied right to be heard to the applicant. I entirely agree with the

observations of the learned state attorney that there was no evidence that the respondent was pregnant and she actually did not give evidence during her evidence in chief on either that she was pregnant or that she got abortion after the alleged assault. All these came during examination by the court. That means without such examination she had ended her evidence without complaint of being assaulted to abortion. I have examined the PF3 and the same indicates that the respondent wasphysically okay with no bruises. That means the respondent sustained no injury whatsoever and was not given any treatment. The respondent raised new ground on appeal that the compensation of Tshs 50,000/= by the trial court was very small as she spent Tshs. 375,000/= on treatment. This was a new allegation on appeal which was not tabled at the trial court no medical sheets and medical receipts were tendered to substantiate such claim. The District Court therefore erred to entertain this claim. The District Court's judgment had several other anomalies: At page two, the appellate magistrate held; 4 "It appears from the records that the victim attempted to attend several medication apart from losing/miscarriage of her unborn baby who was three months pregnancy" Such findings is a creation of records in the mind of the appellate magistrate and it is no where on the record. There is no positive evidence to

that effect. As I have earlier on stated the respondent herself and even her witnesses did ot raise issues of pregnancy or costs of the treatment during their evidence in chief. Those matters came during examination by the Court. I am not convinced to believe that serious issues of the respondent being assaulted to the extent of giving abortion would have not been raised until when the court came to examine her. Costs were not raised at any stage of the trial. Therefore an award of compensation of Tshs 700,000/= by the appellate District Court was uncalled for. The District Court was not justified to raise the compensation from Tshs 50,000/= to Tshs. 700,000/=. It should have left the respondent to seek whatever she might have thought to be her entitlement compensation as it was held in the case of Eriot Ezekiel Dzombe Vs. The Republic, Criminal Appeal No. 248 of 2013 in that; "if he was dissatisfied with the compensation, it was open to him to institute Civil Proceedings to recover whatever he believes he is entitled." 5 "It is from such facts do laments that the fine of Tshs 25,000.00 or imprisonment of three months in jail were not proportional to the offence done." It is my finding that none of the three grounds of appeal by the appellant has this claim. It is therefore a creation of complaint by the appellate magistrate himself in which case he acted on specurations which

affected his decision which is not allowed in the administration of justice as it was held in the case of Materu Leison & J Foya V.R. Sospeter (1988) YLR 102 that; "The trial magistrate erred in his approach to evaluating the evidence by allowing speculative views to affect his decision" Again at page 3 of the District Court's judgment the appellate magistrate blamed the applicant for not entering appearance on when the appeal was called for hearing thereby holding; "On the other side the respondent had never ever attended to this court to support her Reply, this impliedly indicates that she do not regret from what she has done ... I would expect the respondent to appear before the court and defend herself, probably by doing so this court would decide otherwise" This holding of the appellant District Court amounted to nothing but speculations, and adjudging against the applicant on the weakness of her 6 defence. The appellate magistrate should have not acted as such as the none attendance of the applicant on the hearing date did not waive the duty of the court to consider the applicant's reply particularly when the respondent did not elaborate her grounds of appeal but called the court to consider them as they have been presented. The magistrate should have as well considered the reply thereof. In the case of Republic V. Mohamed Shedaffa and three others [1984] TLR 95 it was

held; "The position in law is that a conviction should not be grounded on the weakness of the defence" I therefore find out that the appellate District Court erred to find that the respondent had proved her case beyond reasonable doubt and further erred in enhancing the sentence from three months custodial sentence or a fine of Tshs 25,000/= to a custodial sentence of one year with no option of fine without even taking into consideration that the applicant had an infant child. Again the enhancement of the sentence was not in accordance to the guidelines set out in the case of Rajabu Dausi V. The Republic, Criminal appeal No. 106 of 2012. Lastly, the applicant was sentenced in absentia but she surrendered herself. The court did not follow the procedure upon apprehension of the convict in absentia under the Criminal Procedure Act, Cap. 20 R.E.

2002. As such I hold that there was no evidence whatsoever to establish the guilty of the applicant. There was contradictions in the prosecution case which was fatal to the case and the respondent's evidence was not credible at all. I thus set aside the judgment of the District Court and-find that the 7 prosecution case against the applicant at the trial was not proved beyond reasonable doubt. I acquit him accordingly and order her immediate release unless otherwise held for some other lawful cause. I further order the refund of Tshs 50,000/= to the applicant which is within the court file after the respondent had refused them as being trivial. The applicant should further be refunded the fine of Tshs 25,000/= she had paid as a fine in the trial court. It is so ordered. Judge 15/08/2019 8