criminal decision 2024 12 23 15 18 36

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL APPEAL NO. 000015048 OF 2024 SAMSON S/O KAGOMA .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J This appeal arises from criminal case No. 09 of 2023 of Kasulu district court. The appellant was arraigned of grievous harm contrary to section 225 of the Penal Code. He was tried. Although he was found guilty of the lesser offence of assault occasioning actual bodily harm contrary to section 241 of the Penal Code, still he was convicted as charged. Ultimately, he was sentenced to two years imprisonment. The appellant was not happy with the conduct of the trial, conviction and sentence. Dissenting the opinion of trial court, this appeal was filed. Mr. Kalimunda Yugalila learned advocate who was in conduct of this appeal for the appellant filed 4 grounds of appeal in the following manner. 1. That, the trial court erred both in law and in facts by convicting the appellant as charged while it had already found the accused with a lesser offence. 2. That, the trial court erred both in law and in facts by convicting the accused in the charged offence while it had already ruled that the charged offence was not proved. 3. That, the trial court erred in law and in facts by convicting the appellant basing on evidence of Pw4 who did not prove that the victim got a fracture on his right hand. 4. That, the trial court erred in law and in facts by convicting the accused while the case was not proved beyond reasonable doubts This appeal was contested by the respondent through, Ms Edna Makala learned state attorney. At the hearing, which was oral, Mr. Yugalila, argued together, the first and second grounds of appeal that, the appellant was charged of grievous harm and was convicted of a lesser offence of causing actual bodily harm. He said, the law allows the court to convict on a lesser offence, but it has to substitute the offence charged with that lesser offence which the trial court did not do. He added, the appellant was convicted of grievous harm as charged. On the third ground, Mr. Yugalila was of the submission further that the evidence of Pw4, who is a medical doctor, was married by many contradictions. He argued that Pw4 did not state the nature of the weapon used, if it was Page. 1 Hon. AUGUSTINE RWIZILE sharp or blunt. According to the learned advocate, the victim was assaulted when in fact was not at the crime scene. He did not as well say which type of treatment he administered and which part of the body that was affected. It is based on this view that the learned advocate asked this court to discredit the evidence of Pw4. Submitting in respect of the fourth ground, he said the evidence did not prove the case beyond reasonable doubt. Mr. Yugalila held the view that evidence was in conflict among the prosecution witnesses. For instance, he added, Pw1, said he sustained a broken hand and said was taken to hospital on the fateful day i.e on 14th December 2022, while Pw4 said was attended on 22nd October 2022. Pw1 said had a born fracture while Pw4 did not tell the court about the born fracture but had wounds on the hand, in the face and on the thigh. It is therefore doubtful in his view, if Pw1 and Pw4 are witnesses of truth. This court was asked to place reliance in the cases of Hassan Barie and another vs R. CR. Appeal No. 292 of 2011 CAT on pages 11 to 12, and Mohamed Juma vs R, CR. Appeal No. 385 of 2017 CA on page 24. This court was therefore asked to allow this appeal. Ms.Edna Makala on the other hand, submitted that, it is true, the trial court held the appellant was convicted as charged. It was indeed a misdirection, she commented. But she was of the view further that, this court has the powers to rectify the anomaly. It is not true that the evidence of Pw4 was not sufficient, she argued. According to the learned state attorney, Pw4 corroborated the evidence of Pw1, Pw2 and Pw3, who were eyewitnesses. She said, it was the evidence of Pw4 upon examining him which showed he was with multiple injuries on his body. Lastly, Ms Makala stated that, the prosecution proved the charged. The appellant was convicted of assault causing actual bodily harm. The same was proved by Pw1 to Pw4. Furthermore, she said, if there are contradictions, the same are minor and the victim said was treated after going to the police station and that Pw4 attended him. The PF- 3 shows the extent of the injury as per the evidence of Pw1 and Pw4. This court was therefore asked to dismiss this appeal. Upon having heard submissions of the parties, I have to determine together the first and second grounds of appeal. It has been submitted and rightly so, that, the appellant was charged of grievous harm contrary to section 225 of the Penal Code. The trial court upon assessing and analyzing evidence brought before it was satisfied that the offence charged was not proved. Tragically and I think which is a lapsus calami, still the appellant was convicted as charged. This was not deserving. The trial court therefore ought to substitute the charge with the lesser offence which was proved. This is permissible under section 300(1) of the CPA, which provides that where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. It was held by the trial court that based on evidence, the offence proved was assault occasioning actual bodily harm contrary to section 241 of the Penal code. The trial court did not substitute the charge, it was wrong. Therefore, the first and second grounds of appeal have merits. The third ground of appeal complains that the appellant was wrongly convicted based on the evidence of Pw4. The record has it that Pw4 examined the victim- Pw1. He tendered the police form number three-PF-3 admitted as exhibit P1. In part, I agree with Mr. Kalimunda that the evidence of Pw4 did not prove the offence charged. The record has it further that, P1 did not prove Pw1 was seriously injured. Not even Pw2 and Pw3 who were at the crime scene, because they said, he sustained injuries, which amounted to grievous harm. What constitutes grievous Page. 2 Hon. AUGUSTINE RWIZILE harm is stated under section 5 of the Penal, as follows. “Grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense” What Pw4 testified and recorded in exhibit P1 falls short of the above definition and therefore the charged offence was not proved as indeed held by the trial court. I find merit therefore in the third ground of appeal as well. The last ground of appeal hinges on if there was evidence to prove the case. I have shown before that the trial was not justified after having found the appeal guilty of what it considered as the lesser offence under section 241 to still convict him as charged. I have also held that, it is technical error falling under the slip rule. The issue to be pointed out is, if the evidence available proved the lesser offence. By its nature, assault is committed when a person intentionally causes or occasions actual bodily harm. Actual bodily harm may be proved by oral or documentary evidence or both. In the subject at hand, there is evidence of Pw4 who said, he found Pw1- the victim with multiple injuries on some parties of the body. The same is not different from what Pw1, Pw2 and Pw3 said happened to him. According to three witnesses, as they arrived at the appellant's house and paused a question on how maize alleged stolen ended to his house, he became bitter and rose against Pw1, beat him and threw him on the ground. There is no doubt, he was assaulting him and therefore committed that offence. The point should base on the nature of the offence charged. Can assault causing bodily harm be lesser or cognate to grievous harm. No doubt it is. But because the trial court did not apply section 300(1) of the CPA as shown before, it erred. But I think as well, the omission is curable under section 388 of the CPA, since no failure of justice was occasioned. From the foregoing, I find no merit in the appeal. It is dismissed. It is not known if the sentence imposed on the appellant was based on the charged offence or on the lesser offence. Since that was not clear, I give the benefit of the doubt to the appellant and reduce the sentence of 24 months imposed on him to 12 months. Since he was sentenced on 24th November 2023, he has therefore already served the whole sentence. He deserves an immediate release. He is therefore to be released from prison unless held for some other lawful cause. Dated at KIGOMA this 19th of November 2024 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE