19700929 TZHC Mwanza2

L/. IN THE' HIGH COURT OF TA1Z•NLA IT MWLNZ, Ippo11ate Jurisdiction. CRIMINAL APPEAL NOS. 387, 388 & 389/ 1 97 0 . Original Criminal Case N . 378 of 1969. of the District Court of North Mara District at Tarirne Bforo T.R.Mtui,h..' RAbDHNI s/c HUSSENI, ) APPELLANTd BARNABAS s/c MITA, ) . a . . . a • • . . . . . . . .( Original AccL, HAMISI s/a J1• ) 1 1 2 and 3.) Vs. Ti REPUBLIC. . a , a . a • . • . . a a .RESPO1DLNT(Ori6ina1 Proscc) CFLtRGE: 1st Count: Robbery with Violence cts 286of the Penal Code. 2nd count: Assault causing actual bodilyharmc/s 241 of the Fee. Code. ' I • / JUDGMENT. MIIZAVAS, AG.J. The three appellants were jointly chargod itirobhey with violence c/s 286 of the Penal Coda and assault causi'hgñôtl/bodi1y ha:e c/s 241 of the Penal Coda. They were acquitted on the o6ieflt!of robbery but convicted of the aesault charge and sentoncod to fines raning from ehs.5 0C/= to Shs.700/=. They have now appealed to this Court against the convictions and sentences. In short the evidence before the lower court is that on the night of 6/12/69 Isaya, P..2, a police constable, dccikc. to visit his friend, One Henry, who is also a police constable. On his way to Henry's house he passed outside the house of Barnabas the 2nd aced and heard Henry's voice inside Barnabas's house. He raicad his voice and celled Henry. Henry advised him to got into the house which ic did. exnoreoc Immediately after on3ring the nouse the second accusedLiro1m another rocei and ordered him to get out of his house and pushed him towards the main door. According to evidence as he was being pushed out of the house he lit his pen—torch and saw Ramdhani (1st accused) and Hamisi (third aced) standing just outside the main door. Ha said that the 1st aced as well as the 3rd aced assaulted him with sticks which they wore carryirii According to his testimony the accused also robbed him of his coat. Henry, P..3, told the court that when he got out of the house he saw the three appellants assaultixig Ieya aa he lay crt a ground0 Henry also testified to the cc=t that he tried to intervene but Barnabas hit him on his wrist. The first appellant who appeared before this court said that he could not have assaulted the complainanbocause he was not there when they were assaulted. The second appellant as well as the third appellant who also appeared before this court flatly denied having committed the offence. The learned state attorney argued that there was ample identification of the appellants by the complainants that they were the people who unlawfully inflicted the woundson the complainants on the material night. In this case it is not at all in dispute that on 6/12/69 P..2 and P.W.3 were unlawfully assaulted. It is equally not in dispute thet a result of the assaults each of them suffered actual bodily harm - This fact is fully supported by the evidence of the doctor P..l. The only dispute is the question as to who wore the assailants? The prosecution says that the two appellants wore among the many people who assaulted the complainants. The appellants on the other had deny this allegation. We have the evidence of Henry P.W.3 who told the court that at the material time ha was inside Barnaba's house. According to his evidence ho caw Barnabas pushing Isays out of the house. Henry also told the lower court that he saw and recognised the three appellalits as among the people who cosaultcd Isaya (P.W.2) outside Barnabas's house. he —2- he was trying to stop the appcllant2 from assaulting Isa^ Barnabas assaulted him on his right hand and had two of his fingers fractured. Henry's evidence ab to the identity of the 1st and 3rd accused fully corroborates the testimony of Isaya who told the court that he lit his pen torch and recognised them as they were standing outside tho house near the main door. Over and above the evidence of the complainants regarding identification of the accused, we havc the testimony of Heriot (..4)0 Horiet told the court that earlier that night Hamisi (3rd accused) had gone to her house arm d with a club looking for Isaya (P.W.2) thrcatcn- ing that he was going to beat Isaya to death when he found him; all:3in that Isya had eloped with his girl—friend. The appellants are all well—known to the complainants and, in my view, taking into account the testimony of the complainants ana that of Hariet, I cannot say that the learned district magistrate came to a wrong conclusion. I fully agree with the learned State Ittorncy that there was ample identification of the appellants as the peopie whc assaulted the comilainants. Lppollants memorandum of appeal merely repeats defences which wore rdjected 'y the magistrate as bogus. The convictions are well supported by the evidence. As for sentence I would say that the appellants are extremely lucky to have been fined instead of being I sentenced tc terms of imprisonment. The attacks on the complainants were brul and seriously endangered the life of Isaya. The appeal against conviction and sentence has no merit and is hereby dismissed. Delivered in Court on 29th September, 1 979- Jr" Sd. -J