19771130 TZHC Mwanza 1

c -- IN THE HIGH COURT OP TAN ZItNIA AT MiAN7A APiEDhIATE JJRISDICTIOU. HIGH COURT CRIia1-41 A2PEA] 110. 229 OF 1977 OGIIAJ CPJ1 UYAL C1 .io. u OF 1977 OP TIE DIS R1CT COURT OP GITA DISTRICT AT GTA re P.11. BtJBERWA 1 Esg., SEI6RIAGISTRAE • 0 (original Accused) versus TEE -REPJBrIC . . . . . . . . . . . . . . . RSIDENT (OrjginaJ. Prosecutor) CHARGE: Assaulting cousing actüaly bodily harm c/s 241 of the Penal, Code Cap. .164 JiJDC-EIJJHT LUGA1INGIEA, J. The appellant fought with a barmaid in a bar at C-ei'ta. Being aggrieved, he reported the incident at the Police Station the same night, It seems that the complainant woman ws picked up or called to the Police Station two days later and questioned. She naturally represented that the appellant had assaulted her unlfully and the police turned on the appellant and charged him with assault ocOasioning actual bodily harm. His owa report was swept under the carpet. He was convicted and sentnced to nine months' iLlprjsciament with an crdór for compensation. He then appealed against conviction and sentence In convicting the appellant the trial magLstrato relied on the evidence of D/Cpl Angeline (P7 2) and Dèona'tus Mayaya (P 3) who found the appellant an top of the oomplainnt. None of these wttnessé hor;ever, saw the start of the fight or Irnew the reason.thercfor. I am therefore inclined to the defence story that the appellant

declined the complainant' a offer to open his bottle of beer and got it opened by another woman and that this annoyed the complainant who then uttered obeenities, extolling her genital, poured the appellant' a beer and then grabbed the appellant by the neck and tore his shirt, whereupon the appellant tackled her and landed hex on the floor. In effect the complainant said the seine thing although she naturally apportioned the first insults to the appellant. In these circumstances it would have been fair to speak of a fight rather than an assault. Had the appellant bean the aggressor it would not have -taken the complainant two days to complain; and only after she had been arrested or cummoned to the Police Station. It shovs that she was not convinced of her innocence. This also explains why I/Op1 LigelirJ. nyer took any steps againa't the appellant although h' wi'tiiessed part, of th fight • In all fairness, therefore, both combatants should have been charged with affray contrary' to S.' 87 of the Penal Code rather than pick on the appellant alone and, ironically, after he had lodged a comlaint I am therefore not satisfied that the assault was not justified for it appears to, have been a commensurate'reactiari. to the complainant's attack. Even if -the conviction could be suFrtained, the sentence was manifestly on the high side There vIne no reason why the appellant was not

given the option of a fine. Hy brother who admitted this apoal similarly remark .:d tht the seritnce bordered on the vindictive., It definitely appears so.. As was oubmitted by learned couneel for the Reptiblic, Hr. Rwechungura, th±s'viaa a proper case for canditioual; discharge with a token compensation., .. . ... 2 On acc6u, q.f. tie aecioiT1 I iavc eçDc I S11cYN the appc-.l in its e ib.rety, qun tie coivicticxi cna sc side the sentarce and ordei for eb atioi T1c ppIJnt shoi1c1 bc iinediate1y freca unless furtcZ' acmcCially 1- 1d. 1 ............. •:_ MVtAi ZA • V LUGIL.II' RA, 30T1 1JOvELBCL1977., JUDGE . .. . .• 4 S..