19700807 TZCA Dar es Salaam

IN THE HIGJ: COURT 01? T.ANZANIA At Dar es Dalaam. Criminal Apreal No. 397 of 1970 (Original Criminal Case No. 47 of 1970 of the District Court of Morogoro District at fuorogoro)~. Bet8'ore: - i~. s. :,OK-JrnA,. Esq., _- District Magistrate A.• 9787 J?. C. SIMON ••••• ~ ••• APP.ELLA.NT ' J ·tj versus ,,,. > Charge:- Indecent; assault on a fe1nale c/s 135(1) of the Penal Code Vchl. 1 Cap. 16. JU"DGMYJfT BIRON, J. The appellant was :Jonvicted oJ: indencent assault and he was conditionally discharged u.nder sec·tion 38 (1) of the Penal Code. :,e .is now appealing. The material undisputed facts of the case can br:i.efly be summarised as follows: Tb.e appellant, a police officer, vms dr.inkins one Saturday at a pombe shop ~vhere:Ln the complainant i~ emJJloyed as a bar.maid. Ther,? was som.e hors~-pl,iy wh:ch was started by anoth0r JJOlice officer, one Gidion, who is a boy-friend of th~ complainant. The complainant, who hacl bought some meat an~ po ta.toes .• was sitting down eating them when her boy-friend Gidion apvroached and asked her for some potatoes, and EJho let him have some. The complaint1nt had a shillin 6 which she appr-trently kept on her lnp whilst eating. Gidion asked her f0r this shilling+ She said she coulcl not let him have it, :~s it d:i.d not belong to her.. t Then the appellant appeared and asked for the shillin~, but she declined to let him have it and he snatched it from her lap. As from hare the evidence, even that of pro~ecution, divar~as. According to the complainant, the ap11ellant pushed her down 1 pulled off her dress and deliberately touched her private parts. The ap_pe1lant' s defence was to the effect that after Gidion, wi tl.1 whom t.lc had been drinkints, had snutched the shilling from the complainant ani returned it, he al so plaJrfully en~ tol1ed it from the complainant sa/ing that he would buy- some po .. be with it, The complainant :;;aid that the shilling was not :her 11roperty and she then stood up and ansaul ted hi:i, bi ting his finger.. As he turned to go away shG pushed .hi1a. and. he fell down. Then there was scuffle, and he denied havin~ touched the comJlainant• s :private p ..-urtt~.. Th.e two other wi.tnesses called by the prosecution, one of them the proprietor of the pombe shop, both testified that after Gidion had taken the shilling i from the complainant, but had returned it, th· appellan·t; snatchod t ;i. t f'ro:m ·!;he compla tnan ·t. She stood up, seized. htm and. a scuffle f ensued in the course of which, according to one witness, the appellant accidentally touched the private parts of the 't I complainant, wt1'.i.lst tne other t•1i th0sz sta. t ?-d. tha. t hG could no·~ -~·ay w·hether w.:en the appellant's hand touched the complainant's trivate partc it was by accident or deliberate. I pause to note that theee two witnesses, the only independent witnesses as to the act, both give the lie to the complainant, as they both stated that she att&cked tt.e appellant and not the other way round. Further, on€ of these ·t;wo indepmd.en t wi tneseee, the proprietor of tne pombe shop, cntegoricallJ stated that, in his opinion the appellant acci~entally put hiE hand between the thighs of the complainant in ttle courBe of the scuffle 2 - As, I think, sufficiently demonGtrated, the conviction for indecent assault cannot be sustained. Learned state attorney, who does net support tho conviction as fount~, ho,•:cv~1r, :::iu·bmi t1:J that thir:; Court coul= and eh0uld subst.i tute a conviction for common a£-::suu1-t. His lJ.ne of reasonh1c5 is thdt, ::1s the: com.;plainant had a right to recover. her property and use reasopable force in so doin~, the appellant, even in defr,nd.ing him1:..1elf ., was guil t;y uf com.J1on a2saul t. With respect, whilnt I fully agree that; the compl::dm::nt had a right to recover her property and thi: ri~ht would afford her a def ~,nee if Hlrn wore chart5ed with assault, I f.:1il to St}f.l how the appellant in resistint and defending himself could possibly be gu il t, 1 of co min.on assault. The appeal i.:i aceord'lngly allowed. J:he comrietion is quashea. and ehe ord.er made by the court is ;;;iet aside, as is the order for compensation, which ubviously cannot stand once the conviction on which it is based is m1llified. Delivered in C0u.rt at Dar es Salaam, tl:is sevemtll day of August, 1970. (PHILIP :BIB.ON) JUDGE.