19710514 TZCA Dar es Salaam

IN THE H1GH COURT OF TANZA1IA AT DAR ES SALAAM Criminal Appeal No. 1.03 of 1971 Original Criminal Case No. 459 of 1970 of the District Court of Iringa District at Iringa before B. D. Chipeta, Esquire, Resident Magistrate JOSEPH s/a LUKUPALA . , . • . . ••• . . . . . . . . . . * APPELLANT (Original Accused) versus THE REPUBLJD ..*..*.S•••••••••••.....•..•.• a•. RESPOND1]NT (Original Prosecutor) JUDGMENT B0N J. - The appellant was convicted on his own plea of unlawftl wounding, and he was sentenced to imprisonment for twelve months. He is now appealing from the sentence. The facts of the case were briefly that the complainant borrowed! an axe from the appeilant!s wife in the absence of the appellant on the pretext that he had the appellants s permission to do so. In the following month the appellant asked the conlainant to return his axe, and, failing to get any satisfaction from the complainant, he reported the matter to the ten-house-cell leader, before whorii the complainant promised to return the axe to the appellant. But he did not keep his promise * The appellant then reported the matter to the hnndred-house-celi leader, and it was then that the complainant stated that he had lost the axe in question, but would buy another one for the appellant. The appellant, who was afraid that the complainant would biy and put him off with a much smaller axe, asked the complainant f or Shs. 7/- so that he could buy an axe which would apparently correspond to the one taken by the complainant. The appellant apparently gave the complainant three days grace wherein to find the money, but he failed to pay any money to the appellant, and there ensued a quarrel, in the course of which the complainant raised his hand to strike the appellant, who at the time was carrying a bilihook, and he, so he said, lost his temper and struck the complainant, cutting him about the ankle5 V i- iNW6 In sentencing the appellant the magistrate stated:- 'I have taken into consideration the fact that the accused is a first offender and that the injury was not very serious. Fiowever, the use of lethal weapons, which is so common in the court's jurisdiction, must be discouraged." With respect, I fully agree with the learned magistrate t s general observation that the use of lethal weapons must be discouraged. Even so, the adoptIon and application of that as a general principle does not absolve a court from taking into consideratIon all the relevant factors before determining the sentence in the particular case before it. As noted., the appellant pleaded guilty, which in itself is a mitigating factor entitling the accused to some measure of leniency. Further, as the magistrate himself remarked, the accused was a first offender. And what the magistrate has not taken into consideration is how very greatly the appellant was provoked. The complainant had taken his axe during his absence by alleging, apparently falsely, to the appellants wife that he had the appellant's permission to do so. Then the appellant took all possible and peaceful steps he could to obtain the return of his axe, going first to the ten-house--cell leader, then to the hundred-house-cell leader, and still no axe was forthcoming. And, to cro'vvn all, the complainant assaulted hIm. NOt surprisingly, the appellant, obviously goaded beyond endurance, lost his temper, and he struck the complainant with a bllihook which, it is notorious, is an instrument usually carried by men in the district. Even then the appellant exercised extreme moderation in striking at the complainant in a far from vulnerable spot, at the bottom of his leg., and, as remarked by the magistrate himself, the injury caused was far from serious. In all the circumstances, as agreed to by learned State Attorney, the sentence imposed was excessive. It is accordingly reduced to such term as will result in the Immediate discharge of the appellant, who, it should be noted, was sentenced on the 6th of January, thus having served - allowing for remission for good conduct - a sentence equivalent to more than imprisonment for six months, which, as I think sufficiently demonstrated, is more than ample to meet the justice of the case. Delivered, in Court at Dar es S alaam this 14th day of May, 1971. L (Sgd.) PHILIP BfltON. / JUDGE. / /1