Chacha Range and Another vs Matinde Nyabite (PC Criminal Appeal 4 of 2021) [2021] TZHC 5806 (24 August 2021)

Key Facts

Issues

• The court considered whether the prosecution sufficiently proved that the appellants caused actual bodily harm as required under section 241 of the Penal Code, given the expunged medical report and lack of other evidence on the extent of injuries sustained by the respondent.
• The court addressed the application of the principle of alternative verdicts under section 302 (2) of the Criminal Procedure Code, determining that it is permissible to convict for a lesser offence when the higher charge is not proven, referencing the case of Khamis Juma @ Elia v R.

Holdings

• The conviction for assault causing bodily harm was quashed and the appellants were convicted of common assault under section 240 of the Penal Code. Since the appellants had already served the custodial sentence for the original charge, no further sentence was imposed.
• The court quashed the order for compensation to the respondent, citing insufficient evidence regarding the extent of injuries sustained.

Remedies

• The conviction for assault causing actual bodily harm was quashed and the sentence set aside by the court. This was due to insufficient evidence proving the extent of the injury required for that offense.
• The compensation order in favor of the respondent was quashed, as the evidence regarding the extent of the injuries sustained was found to be inadequate.
• The court determined that no further custodial sentence was necessary since the appellants had already served the sentence originally imposed for the higher offense of assault causing bodily harm.
• The appellants were convicted of the lesser offense of common assault under section 240 of the Penal Code, as the evidence proved only a minor assault rather than one causing actual bodily harm.

Legal Principles

• The court emphasized that for an offence under section 241 of the Penal Code (assault causing actual bodily harm), the prosecution must prove both the assault and that the injury amounted to actual bodily harm. The absence of evidence on the latter element, particularly the failure to call the examining doctor or rely on the expunged medical report (Exhibit P1), led to the conviction being quashed.
• The judgment reaffirmed that the standard of proof for criminal offences requires evidence to be established 'beyond reasonable doubt.' The court held that the remaining oral evidence from prosecution witnesses did not meet this threshold for proving the extent of injury as actual bodily harm.

Precedent Name

• Khamis Juma @ Elia v R
• Mohamed Said Matula vs R

Cited Statute

• Criminal Procedure Code
• Penal Code

Judge Name

Passage Text

• "Since there is no proof that the assault caused actual bodily harm, it cannot be said that the appellant committed the offence charged under section 241 of the Penal Code. At most, the evidence by PW1 proves the offence of common assault under section 240 of the Code... I, therefore, under the principle of alternative verdicts... convict the appellant of the minor offence of common assault though he was not charged with it."
• "In view of what I have endeavoured to discuss, the conviction on the offence of assault causing bodily harm is hereby quashed and the sentence thereon set aside. In lieu thereof, the appellants are convicted of a minor offence of common assault..."
• "The Medical Examination Report (PF3)... was not read over in court... it was rightly expunged from the record... the remaining evidence is not sufficient to prove that the alleged assault... amounted to actual bodily harm."