19710428 TZHC Mwanza

C , IN THE HIGH COURT OF TANZANIA AT ANZA. • Appellate Jurisdiction. • CRIMINAL APET1J, NO.689 OF 1970. 7JU 197 _briginai Criminal Case No.80 of 1970 of. hestrIct Court of North Mara District at Tarime Before C. District Magistrate. HASSAN© MELT s/o MAFJELE. •. . . APPELIANr(Orig. Accused.) • versus THE REPJBLIC.. . . .RESPONDEI\1T(Orig .Prosecutor ,) CHARGE: Robbery with violence c/s 286 of the Penal Code. C(, Y Z17#,C 27 NZAVAS, Ag.J. In this case the appellant was charged with and convict€'. of robbery with violence c/s 286 of the Penal Code and sentence' to 3 years imprisonment and 32 strokes corporal punishment. He has now appealed to this Court against the conviction and sentence. That the appellant assaulted and robbed the complainant of his trousers there is nod ispute. The only cuestion to be decided by this Court is whether the leaned district magistro was right in his finding that aácused'sA vere unlawful. The complainant told the lower court that the appellant for no reocn at all attacked him with a club and a knife and robbed him of his trousers and shs.80/- The appellant on the other hand tcl' the court that he assaulted the complainant because he found him committing adultery with his wife one Gaudensia (P.,5). The learned trial magistrate in evaluating the evidence before him believed the evidence of the complainant that the assault was uncalled for and rejected accused's defence. He 9 therefor:: convicted the appellant and sentenced him accordingly. According to Kuria customary law a rich woman can marry another woman. Then this happens the womanhusband finds a man of her liking who would be the person to satisfy the woman's carnal passions. In this case the evidence clearly shows that Gaudensia (P,,5) was, according to Kuria customary law, marrie& to a lady by the name of Hadija Nyandakuseie. Hadina being the woman-husband chose the appellant as the man to satisfy her wife's carnal desires. Because of this relationship the appellant and the two women li7ed in the same house. Geudensi married to Hadija under Kuria customary law and having her carnal passions satisfied by the appellant. 1 1 The learned State Attorney who argued this appealwas -- - - ØIS • -2- of the that although the relationship between the appellant and Geuddnsia could not strictly be said to be a wife and husband relationship, the relationship is fully ±'ecognised by Kuria customary law and as such the appellant could have every reason to be provoked if he found another person having sexual intercourse with Gedensia. The learned counsel went on and said that on the evidence it was more than probable that the appellant found the complainant having sexual intercourse with Geudensia. The Republic argued that this being the position th appellant should not have been charged with robbery because he merely took complainant's pair of trousers to prove that he sw the complainant sleeping with Geudensia. 1ccording to the State Attorney, the appellant should have been charged with unlawful wounding and not with robbery with violence. Looking at the evidence before the lower court it is ouite clear that Geudensia, who was called as a prosecution witness, was not a very reliable witness. In her evidence in chief she completely denied knowing the complainant0 She, however 9 admitted that the appellant was the man chosen by Hadija, the woman-husband', as the person to satisfy her (Geudensia.'s) carnal desires. According to her testinon.y the appellant has been living with her since she was marriedto Hadija. On being cross-examined her answers clearly showed that her earlier testimony that she did not know the complainant was lies. In fact the trial magistrate observed this by remark- ing in the following terms:- This witness appears to have abruptly changed her mind to alter her story a s soon as accused started cross-examining her. She now endeavours to avoid giving direct answers and so on. 1 he tstimony of G-eudensia when cross-examined by the accused. tends to support the appellant 's story that he saw the conpiei- nant having sexual intercourse with her. The only ouestion is therefore whether the relationship as existed between Geudensia and the appellant was such as to make the appellant provoked when he found Geudensia sleeping wit•h the complainant. I have consulted a Kuria elder who says that a man chosen by a woman-husband as the on.y person to carnally satisfy the womanhusband's wife, has, under Kuria customary law, every right to be provoked if he finds another man having s exual intercourse with the wife. He indeed said tiYt the chosen man can institute a civil case claiming compensation for adultery. -b This being the customary law of theTakuria, the appellant must have been provoked when he saw the complainant committing adultery with Geudensia. His assaulting the comp1i nant was, therefore 9 because of the provocative act of the complainant. His snatching of complainnt t s trousers and shoes cannot in the circumstances of this case be said to be robbery because, as stated by the appellant and Magira (D.tJ.2), he took the trousers and the shoes as evidence to show that he found the. complainant having sexual intercourse with Geudensia. Howcvcr, provocation no matter how strong cannot, in law, justify an assault although the nature of the provocative act can be a mitigating factor insofar as sentence is concerned. Taking the facts of this case and the Kuria customary law into account, there can be doubt that the appellant was grossly provoked when he saw the complainant having sexual inter course with Geudensia. As rightly argued by the learned State Attorney, the appellant should have been charged with assault :. actual bodily harm c/s 241 and not with robbery with violence. It was argued by the Republic that at this stage the offence of assault under section 241 of the Penal Code cannot be substituted for robbery with violence. 7ith due respect to the learned State Attorney I would say that this Court has power to do so under section 181(2) of the Criminal Procedure Code, Section 181(2) of the Criminal Procedure Code says:- Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it." Assault causing actual bodily harm c/s 241 of the Penal Code is certainly a minor offence compared to robbery with violence contrary to section 286 of the Penal Code. The former carries a maximum penalty of 5 years imprisonment whereas the latter is1 14 years felony. The conviction for robbery is qushed and the sentence is accordingly set aside. On the facts and, as rrovided under section 181(2) of the Criminal procedure Code, the appellant is convicted of assault causing actual bodily harm contrary to section 241 of the Penal Code and he is, taking into account the provocation as a mitigating factor, sentence to six months imprisonment. From the warrant of commitment the appellant started -4-. serving his sentence on 10/7/70. He has therefore more than served his six months sentence. Re is to be released from prison forthwith unless he is lawfully held in connection with another charge. Delivered in Court at 7wanza on 28th Ail, 1971. (NA NTAvAs i AU M, D'Soua for the Republic. .Appellant absent and unrepresented.