20151007 TZHC Mwanza

IN THE HIG COURT OF TANZANIA· . AT MWANZA. CRIMINAL APPEAL NUNBER 99 OF 2015 (Original Criminal Case Number 9 of 2015 Of The District Court of Misungwi at Misungwi Befofre Mwambapa Rm) MANSOOR MOHAMED .................................... APPIEllANT

VERSUS THE REPUBLIC ...................................... ... RESPONDET

JUDGMENT 2.10.2015 & 7.10.2015 Matupa, J. · This is an appeal that lies from thE: decision of the District court of Misungwi at Misungwi, where the a_ppellant one Mansoor s/o Mohamed · was charged and was convicted of the offence of assault causing actual · bodily harm contrary to section 241 of the Penal code and · was sentenced to 25 months imprisonment.· Briefly stated, the facts o of this case are as fo_llows. The appellant was the ~hairperson of the youth wing of Chama cha Mapinduzi 1 · · (UVCCM) of. Misungwi District. The complafnant was the secretary. On . ·the 10th of February the complainant -convened a meeting of ward . . . secretaries of the said UVCCM at CCM hall of Misungwi. The Chairperson went·to the hall" and found the·_meeting in progress. It would appear that He was not informed of the meeting, he _was not pleased. It was alleged at the trial that, following an exchan"g·e of words between the chairman and the secretary, the former slapped the latter on his left cheek. It was further alleged that as a result of that assault the complainant was injured. He went to the Hospital and was treated. The appellant was apprehended, charged of _the offences herein and was accordingly convicted and sentenced as explained hereinabove .. Aggrieved by the decision of the trial court, the appellant has appealed · to this court on the following grounds; 1. ·"The honourable tri~;I Resident magistrate erred in law and! . fact for failure analy~e (sic) evidence on record and observe that the case against the appellant was not proved beyond reasonable doubt.

2. That the honourable trial Resident Magistrate erred in fact and in iaw for failure to observe that the case for the Repubiic was marred by irreconcilable inconsistencies - 2 ( 3. That .the · trial magistrate erred in law for basing its . . ·. decision .in ex Pl which same was inconsistence (sic). with evidence on record and did not comp!y w~th law 4. That the honourable tria~ Resident Magistrate erred in la\N for sentencing the appeUant for a term of 25 mo111ths custodial sentence which is contrary to iaw. " When this _appeal came up for hearing, the appellant was represented by Mr Magoiga learned counsel from Kabonde and Magoiga Law Firm (advo.cates) and the Republic was represented by Ms Ajuaye Bilishanga, learned Senior State Attorn~y. I thank them as they were very helpful. . . Mr Magoiga started with ground number 3 of the Petition of Appeal by arguing that it was not correct for the trial Magistrate to rely on the P.F3,· which ·was contradic~ory in terms with the _evidence on the record. He took issues with a finding of fact the tri_al Court made at P3 of the typed judgment, where the court said that "... the PF~ exhibit p1 suggest {sic) that the victim was assaulted by a blunt object of which support {sic) the version that the accused was punched. This court in in its observation noticed that the accused hand/punched is no {sic} blunt. .-." · , .3 _\. . f -- The

learned counsel took issues with this finding. First he took exception with the trial court that 'punching' connotes the use of a blun·t object. When he was asked if punching is the use of a sharp objecf he seemed to suggest t_hat describing it as a· blunt -object was overstretching the meaning of a blunt object. He left to the court to decide. He further contended that the PF3 which agafn suggested that the victim had "_bpth eyes -haematoma formation" is inconsistent with a person who was punched by the cheeks. To him a person who was punched by. the cheeks cannot be injured in the eyes. He further urged the court to expunge the PF3 for two reasons. First the clinical officer who filled the form i~ not qualified in law. to fill such forms. He didn't cite any authority for that assertion. Secondly he submitted that the PF3 was admitted in contravention of the mandatory procedure provided by section· 240(3) of the Criminal Procedure Act, CAP 20. When asked the implication of expunging the PF3 on the pointed out · contradictions he said · the effect will be that the offence of assault causing bodily harm will collapse. Ms Ajuaye on her part replied that it was not correct for the counsel to challenge the contents of a docume~t on appeal; all he can do is to challenge· its admissibility. She submitted however that, in the 4 { \. · .present case even. if the PF3 is expunged still

the remaining <2vidence ·adequately supports the charge. . .. . We think a good starting point is whether the Pf 3 was properly admitte9 in Evidence. · Section 240 of the Criminal Procedure Act provid~s that in -any trial before a subordinate Court, any document purporting to be. a report signed by a medical witness upon any purely medical or surgical matter shall be received. in evidence. Sub section 3 of that section provides .as follows: "When a report referred to in this section is receive4 in evidence; the court may if it thinks fit- and shall if so requested by the accused or his advocate, ·summon and examine or make available for examination the person who made the report; and the court shall inform the accused of his right to require the person who made· the report to be summoned in accordance with the provisions of this sub section·// ·· . This section enjoins the court after receiving a PF3, to inform an accused person the right to have a. medical practitioner for cross examination. In the present case that was done. Pages 2- 3 of the typed proceedings it is stated as follows: 5 , i "... I gave my· 5tatement -to the police, they gave n1e a PF3 and went the hospital for treatment. I rNish to tender the PF3as exhibit. Court: accused explained the right in accordance with s.240 of the CPA RE 2002. Accused: no objection." After the court explains to the accused person the

right to call the medical practitioner in terms .of sub section (1) as it was done in this case, it is for the ·accused or his advocate to avail themselves the right to have the medical practitioner procured by asking the court to do so. In this case this ·was not done. If the accused does not do so he cannot be heard to complain. I do not find merit in the complaint by the learned advocate here. The only issue is whether the PF3 was validly signed by a _clinical officer. I understood the learned counsel as complaining that clinical officers are not qualified to sign PF3's. He may not be ri.ght. It depends on the registration status of the Clinical officer under cap 152. Since the court was not asked to call the clinical officer, it was entitled to assume under sub sect_ion 2 of the said section 240 that the practitioner_ had the relevant qualifications. From the foregoing reasoning I ai:n constrained to hold that I decline to expunge the PF3. I will now turn to the issue of contradictions in the evidence. The counsel complained that the PF3 is inconsistent with the evidence on 6 ,· · -record because whereas the witnesses claimed that the victim was punched on the cheek, the PF3 showed that he suffered from eyes haematoma. Whereas we agree· with. the learned counsel that the . . .. . . conclusion that the haematoma fn the eyes of the victim was a result of his being hit with a

blunt object required explan9tion, which explanation could only come from the practitioner, this does not discount the fact that the complainant was in fact' punched. ~he punching· happened in a broad day light and in the presence of a sizeable delegation of a meeting.· This fact· was not disputed at th_e trial. In fact when the court called the appellant to give his defence, he.elected to remain silent. The court was in terms of section 231(3) of the CPA entitled to draw adverse inference against him. This the court di<;! not do. I have given a close consideration to the facts of this case. I am not satisfied that on the evidence bn record, the punch caused the haematoma. In the absence of conclusive evidence of actual bodily harm, the offence remains to be ·a common assault. Since the latter is kindred to the charged offence of assault causing actual bodily harm, I will invoke my powers under· section 300(2) of the Criminal Procedure Act, cap 20 of the RE of 2002 to reduce the offence of assault ·causing actual bodily harm to that .of common assault. 7 \ . On the sente(lce,. although the counsel for the appellant dropped. ground number. 4 in relation to the legality of sentence, since· the offence of common a~;sau!t carries a sentence of ohe year, the sentence of two years is no longer legal. In fact I am surprised by the decision of the . counsel to drop the. ground because

even the imprisonment of 25 months for the charg·eo offence exceeded that provided under section 241. In the result the appeal is allowed in part. The conviction for assault causing. bodily harm is hereby quashed and the· sentence of imprisonment for-25 months is set aside: A conviction of comm.on assault contrary to section 240 of the penal code is . substituted therefor. Considering the time he has served his sentence, and the nature of the assault, I will revise the sentence and substitute it with three months' imprJsonment. · Dated at Mwanza this ih day of October, 2015 . . . /in I\ r r1. l.~--{vJJ~\"- ~. B1M.fu~arupa,°

JUDGE 2.10.2015 8 Date: 7.10.2015 Coram: Hon. S.B.M.G. Matupa, J_ Appellant:· Magoiga Advocate for the appellant. Respondent: Ajuaye Bilishanga - Senior State Attorney for the Respondent. B/C: Shida. Magoiga: This appeal is c_oming up for judgment we are ready. / . .-~G-t--»~. S.B.M.~

JUDGE 9