NA TZCA Dar es Salaam 3

IN TM HIGH COURT OF TANZMIA nlok AT DAR ES SALAA11 High Court Cral Appeal No. 61 of 971 Original Criminal Case No. 447 of 1970 of the District Court of Izinga. District at Iringa before B. D. Chipeta, Bequire, Resident Magistrate (Original Accused No. 2) versus IT tTTT2rrfr LLL.L JJV4JJJ,.,V L)LVL'U.L,. (Original Prosecutor) Charge: Unlawful wounding contrary to section 228 (1) of the Penal Code, Cap * 16 of the Revised LawS. BIRON J. - The appellant, who was charged together with his brother who was convicted on his own plea, was coni.eted, after a trial., of unlawful wounding, and he was sentenced to imprisonment for nine months - He is now appealing. vidence was given by the complainant, the father of the two accused, and his wife, a stepmother of the accused, to the effect that one night at abøut nine o'clock, on bearing their dog barking, they went outsIde and saw the two accused4 The appellant was carryinga stick whilst his brother was carrying a spear. He asked them what they wanted, and it was apparently the opeilant who answered and said, quoting the record verbatim, We have a problem with you." I should agine that the word used was "shauri", which covers a vast and comprehensive rarge of meanins, and the more appropriate equivalent in this case would probably be, We have some matter to discuss with you Thereupon the appellant's brother threw his spear at the complainant, and it struck him on the left side, causing, it should be remarked, a far from Serious injury. The two accused thereupon ran away. in his evidezico the eomplaiiant stated that he could suggest no reason w1y his sans should have assaulted him, as he had not quarrelled with either of them. However, his wife, the stepmother of the two accused, stated that the two brothers had quarrelled with their father over a shamba. The appellant in his defence stated that he was drinking together with his brother at the pombo shop on the evening in question, and, when they left the pombe shop, his bra thor told him he was going to call on their father to "retaliate" for their father's att.pt to kill their mother, appareutly adding that he was going to stab hiWl He tried his best to disuado his brother from