19700218 TZHC Mwanza

1t t1p4j IN THE HIGH COURT OP TJNZLNIL (In the District Registry.) LT NvJJNZh LPPFLLLTF JURISDICTION. CRIMINLL LPPELL NO, 3 OF 1 97 0 - 0riinal Criminal Case 110 , 485 of 1969 of the District Court of Shnyanga District at Shinyanga Before E.:;Katiti, Rosidont ia,ietrato. LLURFNT :3LTOL0iEO, • • , • • • • . . . • .LPFELLLNT(Original Lccuscd.) —V 5- THE HEPTJBLICO • • • . * • .RDSPOI\rnFNT(Original Prosoc, CHLRGE: 1st Count: hasault causing ciusi bcclil:r harm c/s 241 f the Panel Code. 2nd Count: Unlawful Uounding c/s 228(1) of the Ponel Code. JUDGMENT, KIMICHL, J. This is an appeal against conviction and sentence. The appellant in this case was convicted on two counts, namely c , assault causinr, actual bodily harm and unlawful wounding. • ha u-as also sentenced to 6 months imprisonment on the 1st count and to 10 months impriscumçnt on the 2 count, entencos to run concurnt1.y. The complainant on the 1st count was one Salum Fuugu and that of the 2nd co was one abitiiustafa.. Bi'ic:1y the prosecution case was that the incident arose at a pombe shop, Uno 'j.ausi Lbdall: h had been beaten up and the- first comolainant Salum Punte u-c-nt to ask her wiat htd happened to her, ihilc in the course of askinc: hr the appellant appeared and ho immediately started to attack Salum with a knife. He cut him on the left hand and on the left index finger and then ran away. The second complainant Sabiti Iiustafa i-ICS at the scene when the appellant attacked Salum Fine end ho joined Salum unca in chasing the appellant when the appellant ran c.u-r. They outpaccd the •appellant and caught him with the assistance o a tcn cell loader named iir. Hassani rabata, But the appellant got lose and started running away f or the second time. The second complainant Sahiti riustal'a led the crowd in chasiflg the appellant and when ha was about to catch him the appellant stabbed him in the stomach. He was hwover arrested and over-powered and handed over to the Polioc. . . . Salure Funga's injurics wore mcdicall; classified &s harm and Sabiti Mustafas were classified as dangerous harm. The incident took place in the night. than cdlled upon to iivo his dofence the appellant elected to k op quiet and did not call witnesses. The appellant nas now appealed on thc ,'round that the trial maistrato ;:red in iailin1 to consider thu posoibility of mistaken idontit s te whot1i.r in fact it was the petitioner who ad assaulted the complai- nants in view of the fRet that the alload fi - ht tech place at That the learned resident magistrate erred in allowing hi1iself to ho influenced by the petitioner's election to say othint in defence, hat th prosecution fcild to shuw any motive whatso-:vcr. The trial magistrate had no hesitation in finding as a fact that the prosecution witnesses were witnesses of trugh and that it was the appellant who had attacked the two complainants. I ha.e nc reason to doubt those -2- findings in view of the circumstances in which the complainants sustained their in.Aics There was no possibility of his being. mistaken for another person. The recod does not show that the trial mjstrato's decision was prejudiced against the appole.nt for having elected not to give evidence. i11 that he did was to record that the Etppellant elected to keep quiet anc did not call witnoesos. He was bound by criminal procedure tc record the appellant's decision on this point. He did not make further comments on this decision and proceeded to analyse the evidence and record his finding of fact and law. There was no apparent motive for the appollans conduct but this fact did not weaken the prosecution case0 I am satisfied that there was amlo evidonco justifying the ppoilant". conviction on both counts. I also consider the scntcncos imposed him to be very moderate0 Jis appeal is for the above reasons dismissed in its entirety. Delivered in Court at Mwanza this 18th da3 February, 1970. /-t_._ — (M.P.IIciIL 0) UDGh 0 0 4 ' ft " - -