19720825 TZHC Mwanza3

I THs RIG-H COURT OF TANZANIA at iiwanza CRIEINAL APPEAL NO0 45 OF 1972 ORIGINAL CRIiiINAL CASE NO. 410 OF 1 971 OF THE DISTRICT COURT OF MUSOI'IA. DISTRICT AT PiUSOMA Before P. Hsiska, Esq., Resident Magistrate IIACHLRI NATAG.A versus REPUBLIC J[JDG-EMENT Makame,. J. -. The complainant in this case, Wambura - Mwita, was subjected to.a fr.ihtful assault during the • course of which he lost two fingers. For this the ä1pe 1lant was sentenced to three years and ordered to pay Sh, 2,000/ as compensation. He appealed against the decision and, sharing the views of Mr. 1,11bilinyi, learned State Attorney, I allowed the appeal. According to the complainant, a cattle dealer, on the 17th of Juie 1971 at about 6 p.m. the appellant approached him and asked9 him if he would buy some cattle from the appellant. The complainant said he was interested but, while they were still discussing, the complainant was informed that his own cattle in a certain village had bolted. He therefore, told the appellant that he was going to look• for the aulmals and that he would discuss the pro:osed deal with him on the morrow. The appellant requested that the complainant should pay him money there and then and then collect the beasts the following day. Not unnaturally, the complainant turned down the request as he had not yet seen the cattle being offered for sale. The appellant hit the complainant with a club and then attacked him with a panga. That was the complainants story. The appelant denied the allegation and gave an alibi by claiming that he was away at Isenye and that when he went back to his home-stead he was told that the complainant had been assaulted by some unknown person. The appellant indicated that he wanted to call a witness but the learned trial magistrate decidedm 17 This witness has nothing useful to tell, the court and will not be summoned. I respectifully agree with the learned State Attorney that this course was ill-advid. The appellant was putting up an alibi in which he was silent regarding dates. For all one knows the appellant night have omitted to be specific on the dates and time for lack of articulation and it is possible that the proposed witness would have given a fuller picture. •0 2-. The prosecution evidence itself was inadequate. It was in my view doubtful because the only two eye witnesses, the complainant and P,1.2 9 contradicted each other. Mussa Nyamuguna, P.W.2, told the trial court that when he went to the scene in answer to the complainant's cries he found the appellant still slashing the complainant. However, the complainant own testimony Was that he was alone during the assault. Beside this was around 6 p.m. when it was possibly twilight and so it is not certain that the complainant had enough and reliable opportunity to identify his assailant. Also it is probably not without significance that the Police did not go for the complainant.until after more than a month,. There is no support for P..3 1 s bare assertion that special constables had been to the appellant's house and found him away. It is quite possible that the complainant was attacked by some other person or persons, especially as, according to the complainant himself, he Was a cattle dealer with a reputation for walking about with cash on him. It is because of the above reasons that I agreed with the learned State Attorney who refrained from supporting the trial court's decision, and allotied the appeal. One has considerable sympathy for the complainant the assault onithom was quite brutal but this cannot detract from the fact that the appellant has not been proved beyond reason able doubt to be the culprit, L. 1. Nakame JUDGE Delivered in Court this 25th Day of August, 1972 - . . - -'--------- 4W'- -, •