19790815 TZHC Mbeya

- • 1 IN THE HIGH COURT OF TANZANIA AT N]3EYA APPELLATE J1JRISDICTION CRIMINAL APPEAL NO.100 OF 1979 (OIIGINALCRIflALCASN NO.256 OP 1979 OF 2F] DISTRICT COURT OFGA DISTRICT AT IRINGA) BNFORE: .S.M. NILJHi ESP. R;SIDENT MAGISTRATH MOHLJ.D ADALLAH AWADH •••••• ...... O ...APPELLANTS iI011M'1ED I 1 AHNED . (Original Accused) V e r s u s THE IIEPL3LIC . . . . . . . . . . • ........... , ' . c • o o . . • • • . • . RESPoND:T (Original Prosecutor) n CHARGE: Doing grievous harm contrary to section 225. of the Penal Code. . 4 DGMNIT • 1;1AHIBETE,., - In the District Court of 1ringa, the two cliants, TIohamed Abdallah Awadh and MohaLled Awad.h Ahmed, were %jointly convicte& pf doing grievous harm to one Issa Saad c/s of • ±1e. Peñal Code and sentenced to 4 years imprisonment each. The • S p p sentence was, ubject to confirmation by this court. It was alleged that the—hroi on the 11th day of iIay, 1979 at about 16,30 hours at Lumumba Street - wthih.lWe township and District bf Iringa did j.ointly and together unlawfully cause grievous harm to the said Issa Saad fnhat they struck him iith a panga on the head occasioning him to suffer two cut wounds on the scalp measuring 3 cm x 1 cm and 2cm x 1cm. The two have appealed against both the conviction and sentence .and their appeals are consolidated. Nr. Mawalla of ICibo Chambers, appeared for the appellants. Mr. Mawalla advanced three grounds of appeal as follows: 1 That tthe learned trial magistrate erred in finding that grievous bodily harm had been • inflicted on the comp1ainant (P11) 4 andr consequently erred in law in convicting ,he appellants of an offence c/s 225 of thePenal Code, Cap: 416of the Laws'; . p.. I. 6. —2 - that 'tho learned briai g±rcLto erred in refusing to grant the appellants an adjournment to obtain counsel f their own choice which was Oontrary to the Rules of Natural Justice'; and that 'the sentence imposed on the appellants was manifestly excessive bearing in mind the surrounding circumstances coupled with the fact being first offenders they were entitled to some leniency from the court'. I propose to deal with the 2nd ground of appeal first - which alleges that the appellants were refused the services of a counsel of their own choicer Mr. Mawalia inclion.ted however thtt he di d not pcuo hard on that ground. I,too, am of the view that as far as the record goes the appeU.n Ls iere afforded plenty of time to look for counsel of their own choice. They inded secured the services of Mr. Lakha - from Dar es Salaam - who on 25th May, 1 979 applied successfully the release on bail of one of the two appellants who had earlier been reinandeth The case was then fixed fo: mention on 8/6/79 when a hearing date ws fixed - to take place on 1516/79. No application was made at the time for an extension of time to enable thãm to change the àounsel. And it was not until 15/6/79 - the hearing date - when the appellants purported to ask for an adjournment to unable them to finalise mattewithMawalla of Kibo Chambers. They would not even then give any reason for the delay in obtaining the services of Mr. Mawalla to take over M,r; Lakha. I would not under the circumstances hold that the refusal by the trial magistrate to adjourn the hearing was unreasonable0 Cases must be disposed of as speedily as possible unless otherwise there are compelling reasons to the contrary. Accordingly 2, crumbleSt I would now proceed to gsound. No.1. harm' is defined under the Penal Code - see F. 5 - to mean 'any harm which amounts to a maim o dangerous harm, or seriously permanently injuries health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any extew -ial or internal organ, member or sense' , - -3- Under the same section 'harm' is defind to mean 'any bodily hurt, disease or disOrder whether permanent or temporary' . while 'dangerous harm' is defined as 'harm endangering life'. The same section defines Ijffl as well. It says it means 'the destruction or permanent disabling of any external or Internal organ, member or sense'. The above definitions appear word by word on the PF.3 also. P,F.3 is a Police Form that requires the Medical Officer to furnish, among other things, his opinion as to the nature of injury sustained, whether the injury is mere harm, dangerous harm or giievous harm. And immediately after the definitions there is the Ioflowing NOTE - for the attention of the medical officrg .'If in the opinion of the medical officer, any harm which is not 'dangerous' or 'grievous' at the time of examination may eventually become 'dangerous' or 'grievous' a note to that effect should be made under 'Remarks' - there is a space for 'Remarkstl. Now, on the evidence on record there can be no doubt at all that Issa Saad sustained two, cut wounds on his scalp of the size descrihi at the hands of the appellants. This is clear from the telimcny of almost all the proseoution winceces - both appe].iants having elected, to keep ,quiet hnd to call no witness - when addressed in terms of s. 206 of tho CrimInal Procedure Code. I, too, hold as a fact that the appellants 4 were the ones ho inflicted the injuries. The complainant, Issa Saad, was referred to Hospital and'iven a P,F,3 by the Police -hichP , Fo3 was tendered in court as Exhibit B. :1 The injuries already mentioned 'ere recorded on the PF.3 by the medical officer who examined and attended the complainant. The opinion of the medical &ficer was such that the injuries observed amounted to harm - no bone involvement'. From the above definitions, the injuries clearly did not amount to 'maim' • But they plainly amounted to harm. And if the harm were capable of endangering life - by definition they would indisputedly fall under a more serious category that of 'dangerous harm' - there- fore 'grievous harm' within the meaning under section 225 of the ena1 Code. -4-. But as properly observed by Nr. Nawalla the doctor's view was such that the injur±es amounted tomere banu The doctor did not even - entertain the slightest fear that the inJuries might eventually become dangerous 0 His observations were emphasized by underlyiig twice his remarks of 'no bone involvement'. If the injuries were already clangorous I can see no point in putting the eiiphasis under the remarks of 'no bone involvement'. The views of the doctor in this case were those of an expert. In the light of the cefinitions quoted above I find myself unable to fault the opinion of the Medical Officer. I, too 9 am inclined to feel that the injuries sustained did not amount to dangerous harm • although they were inflicted on the head and presumably with a lethal weapon. There is the temptation to view the seriousness of the injuries solely cn the basis of the weapon used and the part of the body involved. But 9 in my view 9 the criterion in classifying the injuries is not one solely based on the instrument used to inflict them and their location - but basically one of dctormining the actual extent/magnitude of the darnge - including the likelihood of the harm becoming dangerous eventually. And in that respect I think the doctor is better qualified to perform the task and come out with a more rational opinion. In the circumstances of this case and as already indicated I tend to aee with Mx Mawalla that the injuries sustained did not amount to grievous harm 0 In my considered view they simply amounted to aggravated form of assault under section 241 of the Penal Code, In view of these findings I would substitute the conviction under section 241 of the Penal Code i.e. that of assault causing actual bodily harm for that of doing grievous harm. As for sentence the defence counsel and the learned Senior State Attorney were agreed that even if the conviction under section 225 of the Penal Code were upheld the sentence meted out was plainly manifestly excessive the appellants being first offenders and, as it were, the real cause of the fight having not been revealed. I agree. A 4 'ear prison sentence for first offenders is on the high side - the maximum penalty under the section being 7 years. The weapon used was handy at the time. For it is said a panga ordinarily carried by Arabs was used in the fight - the parties being Arabs. - 5 - :cen then since I have atered the conviction to one of assault occasioning actual bodily harm which is a rnisdemeanour I feel constrained to alter the sentence imposed as well - to one of fine of shs0700/_ or 6 months imprisonment in default each. Slnoe none h.s chilenged the order of compensation the same is Q remain undisturbed. DiIverd in cou't this 15th day of August, 1 979- JtV ,1 ' M.J. M1AXIBETE JUDGE it I 4 *