John Machera @ Mwasi @ Mwita @ Machera @ Mwasi vs Republic (Criminal Appeal No. 185 of 2021) [2024] TZCA 1247 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI J.A.. MAIGE, J.A. And RUMANYIKA. J.A/1 CRIMINAL APPEAL NO. 185 OF 2021 JOHN MACHERA @ MWASI @ MWITA @ MACHERA @ MW ASI............................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kahyoza, J) dated the 12th day of March, 2020 in Criminal Sessions Case No. 85 of 2020 JUDGMENT OF THE COURT 5th & 11th December, 2024 MAIGE, J.A.: In the High Court of Tanzania at Musoma, the appellant was charged with the offence of acts intended to cause grievous harm contrary to section 222(a) of the Penal Code. The prosecution alleged that, on 15th day of July, 2018 at Komera village within Tarime District in Mara Region, the appellant, with intent to maim, unlawfully caused grievous harm to Chacha Mariba Mtora (PW1).

To establish the case, the prosecution produced five witnesses, including the victim himself who testified as PW1 and two documentary exhibits namely, the sketch map of the scene of crime (exhibit PI) and medical examination report (exhibit P2). PW1 testified that, on the material date during morning, while on his way to the church, he met with the appellant who had a panga. He was blaming PW1 for coming, on the previous day, with a police at his residence. As he was still lamenting, the appellant moved much closer to him and raised a panga to cut his neck. To defend himself, PW1 confronted the appellant and in the process, the appellant slushed his left outer ear and inflicted injury on his neck. Solomon Chacha (PW2) passed by the scene of the crime a short while after, and witnessed the two holding each other with PW1 having wounds on his ear and neck. The appellant disappeared, as a result. Subsequently, Masinga Joseph Chacha (PW5), a doctor at Tarime District Hospital, examined PW1 and established that, the respective cut wounds were caused by a sharp instrument. The appellant was arrested by the villagers, including Mniko Wangwe Wambura (PW3), on 16th June, 2019 having been seen at Mtarachangini hamlet crossing the road. He was eventually charged as aforestated.

In his defence, the appellant denied the charge. He asserted that he was not at the scene of the crime on the material date. The trial was conducted with the aid of three assessors. After the trial Judge had made a summing up to them, each of the assessors opined that the case had been proved beyond reasonable doubt. The trial Judge concurred with them and convicted the appellant with the offence and sentenced him to 12 years imprisonment. The appellant is not happy with the decision and he has, in reaction, lodged this appeal. In his memorandum of appeal, he has enumerated six grounds. At the hearing, however, the 6th ground was dropped and the remaining grounds reduced into two grounds namely; the assessors were not correctly guided in the summing up; and the sentence was excessive. At the hearing, Mr. Baraka Makowe, learned advocate appeared for the appellant whereas Ms. Mwajabu Tengeneza, learned Principal State Attorney, appeared for the respondent Republic. In support of the first ground, Mr. Makowe faulted the trial Judge in not correctly guiding the assessors on the essential elements of the offence. It was submitted that, while the information asserted that the appellant unlawfully caused grievous harm to the victim with intent to maim, in the summing up, the trial judge mentioned other extraneous

elements namely, intent to disfigure and intent to disable. The trial Judge was also criticized for misleading the assessors that the actus reus for the offence is inflicting serious injury to the victim and m ensrea is intent to maim, disfigure or disable. The said misdirection, it was submitted, created a confusion to the assessors such that the first and third assessors advised the trial Judge that, the appellant was correctly identified which, according to Mr. Makowe, was irrelevant in the instant case. Ms. Tengeneza submitted in rebuttal that, the mentioning of the two alternative intents by the trial Judge to the assessors was correct as it sought to make them appreciate what the law required. Equally, she submitted, the elements of the offence were correctly explained to the assessors because that is what section 222(a) of the Penal Code entails. We have considered the rival submissions on the first ground and were are, for the reasons which we shall explain in due course, of the view that, the same is without merit. The provisions of section 222(a) of the Penal Code which creates the offence state as follows: "222. Any person who, with intent to maim ; disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the law ful arrest or detention o f any person- (a) Unlawful wounds or does any grievous harm to any person by any means whatever:

(b) Irrelevant (c) Irrelevant (d) Irrelevant (e) Irrelevant (f) Irrelevant (g) Irrelevant is guilty o f an offence and liable to imprisonment for life ." From the above passage, the trial Judge was correct to say at page 26 of the record of appeal that the intent to maim or disfigure or disable another person constitutes mens rea of the offence. That being the law, therefore, the statement could not, as alleged, have misled the assessors. Besides, though it is true that the actus reu for the offence is unlawfully wounding another person, omission to mention the phrase "unlawfully" is inconsequential and as such it did not, in any way, cause confusion to the assessors. Indeed, there is nothing from the opinions of assessors at pages 32 and 33 of the record of appeal, in our reading, to imply that the assessors or any of them were not adequately made aware of the essential elements of the offence. We also do not agree with Mr. Makowe that, the opinions of the first and third assessors were irrelevant. As the appellant disassociated himself with the incident, whether PW1 identified him at the scene of crime was crucial in deciding the case. In our careful examination of the record of appeal, we have without doubt that the case

against the appellant was proved to the required standard. It is no wonder because of that reason that the appellant has not recorded any complaint on the correctness of his conviction by the trial court despite that all the three assessors opined in support thereof. In that regard, it cannot be said that the assessors were misdirected. The first ground is, therefore, dismissed. We now direct our mind on the second ground that the sentence is excessive. It was contended that, since it was suggestive in the deliberation of the trial Judge at page 47 of the record of appeal that the appropriate sentence would be 10 years imprisonment, the imposition of a custodian sentence of 12 years at the end without assigning any reason therefor, was an obvious error. It was submitted further that in reaching such a conclusion, the trial Judge was too much influenced by the sentencing guidelines of the Chief Judges rather than exercising his own discretion. Ms. Tengeneza submitted that since the maximum penalty for the offence is life imprisonment, the 12 years custodian sentence was justified and the trial Judge cannot be blamed for not taking into account the appellant's mitigating factors.

The gist of the complaint in this respect, it would appear, is unreasonable departure by the trial Judge from 10 years custodian sentence to 12 years custodian sentence. The complaint arises from the deliberation of the trial Judge on appropriateness of the sentence at page 47 of the record of appeal where he remarked "Since the accused person used a dangerous weapon as subm itted by the prosecuting State Attorney. The sentence he deserves is between life imprisonment to ten years. To red u ce th e se n te n ce from life im p riso n m e n t to 1 0 years, I have to co n sid e r m itig a tin g fa c to rs ." [Emphasis is ours]. Having remarked as above and upon mentioning the mitigating and aggravating factors, the trial Judge pronounced, without further explanations, a custodian sentence of 12 years. From the afore quoted comments, we find ourselves unable to do without concurring with Mr. Makowe that, in the absence of further explanations, the trial Judge was expected to reduce the custodian sentence to 10 years which was the subject of his deliberation. If his conclusion was otherwise, after weighing the mitigating and aggravating factors, that was to be clear in his subsequent deliberation. We think that, the error we have explained above affected the correctness of the

exercise of the discretion by the trial Judge which entitles us to intervene. All in all, having reconsidered the mitigating and aggravating factors in the circumstances of the case, we are satisfied that, 10 years custodian sentence was appropriate. To that extent, therefore, the second ground of appeal succeeds. In the final result, save for the sentence which is reduced to 10 years imprisonment, the appeal is hereby dismissed. DATED at MUSOMA this 10th day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 11th day of December 2024 in the presence of Mr. Baraka Makowe, learned State Attorney for the Appellant and Mr. Zarubabel Ngowi, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.