Juma Lebenge v. R., H.C. Crim. App. 160-DSM-72, 16/8/72.
Held: (1) It is not necessary for a trial court to mention every witness by name in his judgment provided it is clear that the substance of the evidence has been considered.
(2) “Grievous harm” as defined in Section 5 of the Penal Code does not include all bodily hurts which are permanent, but requires that the harm be such as seriously to interfere with health or comfort.
(3) The knocking out of tooth with a first does not by itself constitute “grievous harm”.
ONYIUKE, J. – The appellant was convicted by the Resident Magistrate, Mr. P. K. Shayo, in the District Court of Dar es Salaam, of causing grievous harm c/s 225 of the Penal Code. The particulars of offence were that he unlawfully hit one Jones Sombanile on the mouth and knocked out one of his teeth. He was sentenced to 18 months’ imprisonment and was ordered to pay Shs. 150/= as compensation to the complainant for the injuries he sustained. The appellant has appealed to this Court against his conviction and sentence.
The main point in this appeal against conviction was the complaint of non-direction and the effect it had on the conviction. The facts were that the appellant who had fathered a child for one Chiku Nyanga (P.W.2) saw her walking along
The appellant in his defence stated that on that day he saw P.W.2 with a man who was “unknown” to him. When P.W.2 saw him she stopped and he talked to her. According to him, P.W.1 “ran away” when he was talking to P.W.2. He asked P.W.2 who P.W.1 was but she gave him no reply. He then called P.W.1 who was a bit far away. P.W.1 came and I reproduce the appellant’s evidence as to what transpired. “I called the complainant. He came there, we were now 3. I asked him why he was walking with my fiancée.” He said he did not know me. I talked very politely. I came near him. He did not answer me. He started answering rudely. He said it was not his duty to find out who I was. I told him I did not want to quarrel I only wanted to know. He lost his temper. He struck me on the face-bone. The girl caught me by my waist. Complainant took advantage. He tried to throw me down. I was struggling. Complainant held my shoulder. He tried to beat me with his head. I managed to avoid his head. He knocked his head on the floor. I pushed him. He fell down.” According to the appellant the complainant lost a tooth when he accidentally knocked his head on the ground. He called a witness on Hassan Saudi who testified that he saw P.W.2 holding the appellant by the waist and a man came and held the appellant, and threw him down. People came in to separate them and he (witness) held the accused. Under cross-examination he stated that both appellant and P.W.1 struggled and threw themselves down. He said he did not see P.W.1 bleeding and he did not bother to see if he was bleeding.
The learned Magistrate reviewed the evidence and held that it was the appellant that started the fight and that he knocked out a tooth from the complainant’s mouth. He accepted P.W.1’ s account that it was the appellant who attacked him on two grounds, namely, the inherent probability of the case and the corroboration of this evidence by P.W.2 whom he considered a truthful and impartial witness. As to the first ground the learned Magistrate stated the appellant was unable under cross-examination to say how P.W. 1 was rude to him and what constituted the rudeness. Furthermore if the complainant was rude the person likely to be provoked by the rudeness was the appellant and not the complainant who was offering the provocation. The learned Magistrate held that the appellant’s assertion that the complainant was rude was merely a pretext for his attack on him.
Mr. Lakha, learned Counsel for the appellant, has attacked the learned Magistrate’s judgment on the ground that he failed completely to take into account the evidence of the only witness for the defence in making his findings of fact based on the credibility of the witnesses. The evidence of the defence witness supported the appellant’s story and had the learned Magistrate considered it there was the possibility that it could, at last, raise reasonable doubts in his mind as to the appellant’s guilt. It was therefore a serious case of non-direction. The learned State Attorney who appeared for the Republic conceded that no where in the judgment was the appellant’s witness mentioned or his evidence considered but he submitted that this was not fatal to conviction considering the whole circumstances of the case.
In my view it is not necessary that a trial court should mention every witness by name in his judgment provided it is clear on the record that the substance of the evidence of the witnesses which supports the prosecution or the defence was considered by the court before arriving at its findings of fact. In this case there was only one witness for the defence and it did appear at first-sight as if the learned Magistrate took no account of his evidence before arriving at his conclusions of facts. He did however say that he had given the case most serious and careful consideration. It would have been much better if he had made some reference to the fact that the appellant’s story was supported in part by the evidence of another witness and to have stated whether he believed it or not. I accept the submission that the failure by the learned Magistrate to refer to the evidence of the appellant’s witness was a non-direction. I accept, however, the submission by the learned State Attorney that the non-direction was not fatal to the conviction in the circumstances of this case. Even if the evidence of the defence witness was accepted it did not affect the Magistrate’s finding that the appellant was the first to attack the complainant. [The Court elaborated on this point and then continued].
I entertain grave doubts however whether the loss of one tooth in the circumstances of this case amounted to grievous harm within the meaning of that term as defined in Section 5 of the Penal Code. Section 5 defines “GRIEVOUS HARM” to mean “any harm which amounts to a main or dangerous harm or seriously or permanently injures health or 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.” ‘Maim’ is defined in Section 5 as ‘the destruction or permanent disabling of any external or internal organ, member of sense.’ ‘Dangerous harm’ is defined in Section 5 as ‘harm endangering life.’ ‘Harm’ is defined as ‘any bodily hurt, disease or disorder whether permanent or temporary.’ A bodily hurt which is permanent may therefore not necessarily amount to grievous harm. It is my view therefore that the term ‘grievous harm’ as defined in the Penal Code necessarily involves a consideration whether the harm is such as seriously to interfere with health or comfort and the answer to the question may depend on the nature of the injury and the surrounding circumstances of the case. The knocking out of a tooth with a first is not by itself, in my view a main or dangerous harm or harm which causes permanent or serious injury to health nor does it amount to permanent disfigurement. I am fortified in this view by the medical report, which, although it is not binding on me is nevertheless relevant, described the injury as ‘harm’. I will therefore alter the finding to assault causing actual bodily harm c/s 241 of the Penal Code. (See: R. v. MIPAA, (1968) H.C.D. n. 265). Subject to this, I will dismiss the appeal against conviction.
I will now turn to the consideration of sentence. The appellant was sentenced to 18 months’ imprisonment on the basis of a convict for causing grievous harm which carries a maximum sentence of 7 years. Now that the finding has been altered to that of assault causing actual bodily harm which is a less serious offence and a mis-demeanour, I should think that the sentence should be reviewed. The appellant was a first offender, a young man of about 25 years who acted from the excessiveness of personal emotion and jealousy. This cannot however excuse his conduct especially in this case where he had no reason to be jealous in view of his selfishness and utter disregard of the feelings of P.W. 2, who considered him a “cheat”. He fathered a child for P.W.2 and instead of marrying her took another woman as a wife. He has now lost his head because he saw P.W in another man’s company. He had misbehaved himself in public. I think, however, that the fact of a criminal prosecution and conviction and consequent public disgrace have served to make him realize his folly. I do not think a prison sentence will serve any useful purpose in this case. I will alter the sentence to Shs. 200/= or 2 months’ imprisonment in default. ORDER: Finding altered to that of assault causing actual bodily harm c/ss 241 of the Penal Code. Subject to this the appeal against conviction is hereby dismissed. Sentence is hereby altered to a fine of Shs. 200/= or 2 months’ imprisonment in default. The order for compensation stands.
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.