Bhaya s/o Mohamed v. R., Crim. App. 29-DDM-72, 1/6/72, Mnzavas, J.

 

Bhaya s/o Mohamed v. R., Crim. App. 29-DDM-72, 1/6/72, Mnzavas, J.

The appellant was convicted of assault causing grievous bodily harm contrary to section 225 of the Penal Code and sentenced to 9 months imprisonment and ordered to pay Shs. 300/= compensation to the complainant. It is not in dispute that the accused assaulted the complainant and caused her to lose one tooth. Equally it is not in dispute that the assault was unlawful. It has …. Been argued by the defence counsel that the trial magistrate misdirected himself when the held that loss of a tooth amounted to grievous harm. In support of his argument the counsel referred the court to the decision in R. vs. Mipaa s/o Mananjimia (1968) H.C.D. n. 265 in which Seaton, held that loss of one tooth could not amount to grievous harm as such loss did not amount to permanent or serious injury or disfigurement. In coming tot his decision the learned judge followed the decision in Regina vs. Ali s/s Fakili 2 T.L. R. 44.

            Held: (1) “Clearly the assault of the complainant by the appellant did not amount to grievous harm. For an assault to amount to grievous harm the injuries suffered by a complainant must amount to a main or a dangerous harm or seriously or permanently injure health or the injury must extend to permanent disfigurement as defined in section 5 of the Penal Code. On this point I would strongly advise the learned district magistrate to read the above quoted decisions as well as the recent decision in Sebastian Gilbert vs. R. (1970) H. C. D. n. 281.” (2) “I agree with the defence counsel that in the circumstances of this case the injury suffered by the complainant as a result of the assault only amounted to assault causing actual bodily harm contrary to section 241 of the Penal Code.” (3) “As for the sentence of 9 months imprisonment I agree with the learned district Magistrate that prison sentence was indicated but with respect it is my view that 9 months imprisonment for a first offender was unduly severe. I note that the appellant has already been in prison for over 4 months. This is adequate punishment. I accordingly reduce the sentence of 9 months imprisonment to such term of imprisonment as would result in the immediate release of the accused.” (4) “As for the compensation order I must say that I am unable to follow the learned defence counsel’s argument that the trial magistrate should have left the complainant to file a suit for compensation for her injuries. The compensation order was properly ordered under section 176 of the Criminal Procedure Code. There is nothing wrong with it. The Shs. 300/= compensation order stands.”