19711026 TZCA Dar es Salaam

IN THE HiGH COURT OF TANZANIA

AT DAR ES SALAAM High Court Criminal Appeal No, 203 of 1971 O,jna1 Criminal Cane No. 348 of 1970 of the Diitriot Court of Mtwsra District at Ytwara befores Y.3, Mperells, Esq., istri.ct Nagiatrate. A .8765 P. • ATATOLY ................. ,•,•••••• ••• APPCLUNT versus TRP RPUBLIC PO!DE11T TTARSs (3. ?'ommon assault 240 of the Penal Code, (2 Malicioue damage to property c/n 36(1) of the P.C. (3 trori.fa1 confinement o/. 253 of the Penal Code. Biron J. - The appellant, a police constable, who was charged on three countet of common assault, of malicious assign to property and of wrongful confinement, was acqu2tted O.i the first count and convicted on the other two counts and sentenced respectively, to a fine of Shs.1/— or imprisonment for two months in default and a fine of She.200— or imprisonment for three months in default. He is row appealing, videnoe was given by thc .;omplainant, his wife, and by a neighbour of theirs, to the effect that in the late evenin: of the 2nd of August of 1at year, as they were aittin in the complainant's house, actually outside in the backyard, the appellant appeared and requested permission to use the latrine. His request was granted. As he delayed un:].uly in the latrine, the complainant went to see if there was anythin, wron:, but was assured by the appellant that there was nothing wronge when the appellant emerged from the latrine it transpired

that he had fouled it. Although, according to the neighbour he at I irøt apo10 sod, according to all three witnesses be proceeded to abuse the complainant accusing him of witchcraft, grasped bold of him and hauled him to the police station. There the story is taken up by Sergeant Selemani who was in charge of the olice station. If testified that he saw the appellant bririgint in the complainant forcibly to the police station, and on his enquirinr why, the appellant refused to give any reason but stated that he wanted the complainant to be looked up. The Sergeant refused to comply and he telephoned, to Inspeotor who was the duty officer on call. The inspector test'fi.ed as did otoctivo r, onstable Samweli who had also arrived on the scene, to the effect that the appellant insisted on having the complainant looked up without giving any reason. The complainant himself complained that the appellant had fouled his latrine, then accused him of witchcraft, had assaulted him and in the process had torn his vest. The police went to the complainant's house where they saw that the latrine had been fouled and the Sergeant drew a sketch plan of the scene. On their return to )wakipesile, ....,, 2 eaj inoat fleT4OtO O eso g aaGfl' o. eseG et uttGdI eq.9080 1 0S TP pttq o ; JdTaoex e UflU1 UØ1 010 V=ONV G GSeO yo o1 pçOe t q0tjQjz =,0u00 ot. qqç4pm q.9onbeaa ptie 'uøa.xGd u; tj, eddv eq. u9tt

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of white tetron material, whereas according to the appellant in his evHenoe, when he saw the complainant and suspected him because be was wearing tetron trousers, be described the trousers as being of dark tetzon material, As I tbnk sufficiently demonstrated, it is unbelievable that all these witnesses would combine to frame the appellant as alleged by him. The evidence to my mind, establishes bey9nd a shadow of doubt that the appellant had in fact fouled the oomplainants latrine doubtless beoauo hø was drunk, and for the same reason be then concocted a story that he was arresting him on suspicion of being concerned. In the theft of clothes from Issa bin Isea. The convictions are thus fully supported and justified by the evidence. Vor the sake of the record, it should be noted that the appellant was acquitted of the charge of assault, although he had in fact assaulted the complainant, because the particalare of the charge allege that the appellant, and I quote: d1d unlawfully assault Mohained. s/a Abdallab by usSi abusive language, to iIt OWM. NI 1CRAWI NA 11I flWIZI'." As the learned magistrate very properly tiireoted himself, this use of abusive language certainly does not constitute an assault, and he therefore very properly acquitted the appellant On that charge. With regard to the sentences imposed on the two conviOtions, they cannot by any stretch be regarded as ciceselve. The appeal is accordingly dismissed.. Delivered in Court at Par es Salasm thIs 26th day of No,smber, 1971. (PBILIP IEON) flThc