na TZHC Dodoma 6

IN TEE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRThINAL APPEAL NO., 21 OF 1972 ORIGINAL CRIMINAL CASE NO., 415 OF 1972 OF THE DISTRICT COURT QP IRINGA DISTRICT AT IRINGA. Before T. N. I.. Ngitami, Esq.,, •. ,... .,.....,..,.......District Magistrate ALPHONCE 5/0 MWALUSAIIBA.... ........... ....,... . ... ....... .Appellant (Original Accused) Versus THE REP'U13 LI C . ,. ....,. • .,. . . . •, .,. . . .. .,.. . • . .... . . .. . ... .Rc s pond ent (Oriinal Prosecutor) Charge:; Unlawful wounding contrary to section 228 (1) Cap 1.. Vol.1 of the laws'.. J U D G E N E N T ñIKIMA AG. ,•: Accompanied by two others, the appellant went to drink in a bar where John Nustafa,. Halima Juma and Lydia Checham were employed as a bar-attendants'.. Smehow the appellant found himself in an imbroglio with John.. The upshort of the imbroglio was that the appellant applied a beer-bottle on the person of John with .ome considerable force..., John lost some teeth as a result., he matter was promptly handed over to the Police who did not hesitate to effect the appellant's araignment,,. The tal court convicted the appellant and his companions for robbery. In his petition the appellant argues that the facts of the case did not disclose the offence with which he was convicted. hlis argument. cannot be lightly dismissed.. Even from the record it can be gathered that the appellant was going to be prosecuted for unlawfully wounding John until the magistrate instructed the prosecution to proceed with robbery. This unwise move was taken by. the magistrate after hearing the evidence of John - which evidence was.far from reliable.. The trial court properly found that the appellant and his companions visited -the bar outside the authorised time. According to John, he was resting in the bar when they knocked at the door., John opened for them.. They 'then. asked him to sell them beer. He told them.it'was notyot time.. The,: appellant then forcibly, entered the bar,, walked .up to"the. counter, picked up three. beer bottles lying thereon and smashed them on the floor., This is a very likely story indeed.. John did not explain why he should choose to rest in the bar and not at his home like everybody else.. It is :iore likelj that he was running the bar', outside the permitted hours as the appellant and his companions said in their defence. . The distorted picture he, gave to the trial court was a..bid to escape the consequences of his illegal action of selling beer.:' outside the permitted time.., That is why his story has not support from the other witnesses.. . . . . . , ./2