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IN THE HIGH COUPT OF TANZANIA 17e91 J/ AT DODONA APPELLATE JURISDICTION (D0D0NA REGISTRY) / CRIMINAL APPEAL NO 10 OF 1978 (ORIGINAL CRIPINAL CASE INTO. 338 OP 1977 OF Ti DISTRICT COURT OP SINGIDA) / LABISLATJS 5/OPETRI •.......... Appellant • (Original Accused) versus THE REPUBLIC..................ROSpOfldOflt • (Original Prosecutor) Chargo Causing Grievous horn contrary to section 225 of the Penal Code Cap. 16 Vol.1 of the Laws. J U D G N E N T JONATHAN9 Ji It all occurred at the' Makiungii Primary School, Singida District whore the appellant was the head teacher and PW. 1 the complainant, P1L.3 qnd P1q.4 were among LthO other teachers. They were all provided with living quarters at tht school. In the small hours of the relevant night the appollnt appears to have cone out of his house with a shotgim of the typo normally used for killing, birds and other rünor game and shot at the complainant in the lower lops , and f;ct thcro'y causing numerous wounds which are togthcr doscribod in the medical report as constituting griovous hoxn.anci for which h appears to have been admitted in a hospital for a corsidorablo period. For that incident the appellant was conviôtod of causing grievous harm c/s 225 of the Penal Code and sentenced to a fine. Acainst the conviètion the yr"oal has boon brought. The circumstances of the shoot—out may be briefly stated. There had previously been a number. of incidents of breaking into and stealing from the school store. On the relevant night PW,3 appoare to have been awakened from sleep by noises coming from the direction of that store and he at once concluded thieves were again bra.king into it. He cane out and knocked on the dor of the complainant's house. There was however no response, so he nova-cl on to the house of the appellant whom he woke up and told what he had hcard. The latter took the shotgun and together they proceeded to the store. They soon confirmed there was theft going on in the store, so they stood b to watch. s to wha± thcn harponod there are two versions, namely, that of the complainant, on the one hand, and the accounts of PW.3 and the apellont,on. the other. According to the conmlainant he ha;I that night co:c out to pass water when he saw two people he suspected to be thieves. He wa-nt back inside and after tolling P14.2, his wife about his suspicion he took a torch and "a long 1mife,"presuihly a panga, and proceeded towrds th school store, and upon shining his torch saw the door open. He did not ontor the store. Instead, he decided to roort to the other teachers, and as he was turning about to do so he was suddenly hit by the gun shots. Only then did he become awpro that they had boon fired by the a)Jcllant as he charged that he was thief 1hoy had always boon looking for. A - --• - .-•• - - 2 - The contradicting version which the trial court seems to have preferred, and I would say justifiably so, was that, about 20 minutes after the appellant and P!.3 taking cover in the precincts of the store, someone came out of it lighting a torch and havrig a panga. The appellant then asked him three times to say who he was. That elicited no. reply. Instead, that person lit at them. The appellant then fired at him. Initially, according to him, he had intended to fire in the air, presur:iably to effect his arrest, but after he failed to reply and then shone on them he decided to shoot in the le.s. It was only then the complainant cried out he was the ore, duly mentioning his name, and, plead.in( with them lest they should report to the police o suggested that they should together settle the matter in the presence of his wife. This the appellant would not grant and reported r firstly to PW.4 both as a neih oaard their cell leader and then to the police. The learned state attorney in aup ort of the conviction argued that the complainant being on the staff of that schobl could not possibly have set out to steal from it. I cannot, with respect, follow this line of reasonina, in vindicating hi. . There is no dispute that the store had in f'-.ct been brokon into. The eomplainant denied he was fod inside it, but on the evidence of PW,3 and that of the appellant supported., as it was; by the coplainant's om confession soon after ho was woudcci, there cnn be little doubt th-'.t he had, either alone or in collaboration with others, been stealing from the store at the relevant time. The argument, in any case-, is a little beside the point for, t10 case has to tum'i on whether the appellant in the circuast-ances in which he found himself was justified to shoot at the com:'lainant. It is clear on the evidence that the appellant's act occasi- cned grievous harm to the complainant. He had however encountered the latter in circumstances from which he had every reason to think he had broken into that store and had been stealing from it. By soci±on 19 of the Criminal Procedure Code he was under the circumstances empowered to arrest him. The act of shooting, therefore, was not per se unlawful within the meaning of s., 225 Of the Penal Code. It would be considered lawful if it was done either in order to arrest the complainant or in self defence, provided, however, in either case the force used was not excessive. The learned resident magistrate in his rather brief judgment addressed himself in these words: "....•# the complainant had not put up any resistance against arrest. He had not even attempted to run away.. The accused canrot, therefore, say tiat he shot to complainant in order to cfdoct arrest.. The a; ;used could be justified to shoot the complainant, so ae to effect arrest if the comalainant had attempted to run away.. There is no evidence that the complainant had attempted to run away. Again the accused cannot say that he shot the complainant in self defence. The flash of torch the complainant made up on accused, if over he riade this flash, had not posed any danger or the part of the• accse to justify him shoot coriplainent with a gun...." It would appear from the appellant's evidence in defence that in a staff ne;ting it had been resolved to be all-out to catch those who had been stealing from the school and th a, t w hen on the relevant night he saw someone coming out of the broken-in store he got ready to shoot in the air, presumably to catch him. On second thoughts, however, he aprears to have decided to speak to that person first. That person then lit 'the torch on him and although he called him three times to srtr who e'was he did - 4.. -3- not replyond persisted in shining the torah on him. And thQse. were the circumstances wh•iOh made him decide to shoot at hii.:in the logs. Unforttmately, however, he .did not say, nor was ho. asked, specifically whether he did so to arrest him or wh.dther he acted in self-defence. On the evidence there can be littlà certainty, therefore, as to. how his mind was working then, t}at is,ithe situation, as he saw it, th'.t prompted him into action. In my view, the trial court with ;:ct, seems to havE resp(- adted in the dark in reaching the conclusions that the appellant when he fired was neither sooki to arrest the appellant nor to defend himself agait him.. The appellant having given his defic on oath without ho.wover spelling out th reason for firing, :secutor and the trinl court alike should in the Lth e circumstances have attempted to find out from him what his real defence was. This court, like the lower court, would have to consider both these possible defences without having before it such elucidation as the ap)elt uit have given. As regards the defence of arrest the lo or court found the appellant had no justification to shoot because the coriplairant had neither "put up any rosistanco" nor attempted to run away. Now, section 19 (2) of the Criminal Procedure Coda provides: "If such person (meanii1 the person intended to be arrestod) forcibly resists the cn.doavour to arrest him or attempts to evade the arrest, such police officer or ot'.or person may use all means n3ccssary to effect the arros. In' the judgment of the learned resident magistrate, however, in this case the accused had not put up any resistance or attempted to evade the arrest. The behaviour of the complainant at the rele- vant time has to be looked at critically to decide whether or not he roasonably appeared to put up any resistance or to attempt to evade the arrest.. He was called upon to say who he was. He would not reply. 'Instead, he shone his torch at the appeliant The latter repeated the question twice but the complainant as before would not answer and kept the torch switched on at the appellant, this notwithstanding he saw him having a gun. Thrt to my mind is not the behaviour of an armed felon ready and willing to submit to an arrest, and in my judgmt the complainant, by his behaviour, invited the usc of force to aur'rohond him. Whether the appellant used excessive force, it might be considcod that it was very late in the night and in circumstances from which it would have boon reasonable for the appellant io susiect there might have been other people in collabor 'tion 'iit.h the torch and panga bearer and that he directed the aa.unition, the only woapen he had, at the logs. 4uch the same reasoning would apply to the possible defence of self-defence.. As regards this, however, the learned state attorney urged that the appellant at the time of firing w .s too far from the complainant to be in imminent clangor. On the evidence, however, no guess can be rvdc of 5ow far apart they wore and, as likely as not, the distance separating than i.ight have been only a few paces. If It was, considoing the coniplai- nant was armed, the appellant would have had cause to apprehend danger, especially having in mind the possibility of the complainant being in league with other thieves, which possibility could not have been considered altog,therunreasonablo, in the light of the complainant appearing to hold out even in the face of the appefltht having a gun. 0 i . . /4