19730316 TZHC Mwanza

C U.i Li7. .L I - JLJILL.e :T hLNZ hIGH COUhT ChiL1I1•1L LPPIIL ho.A56 OF 1972 Original Criminal Case ho, 812 of 1972 of the District Court of Mwanza District at Mwaiiza Before L.G. hagairaukamu, PHILLIPC' s/o CUL0., .. PPLLfLT VCI'SUS Tii. llhSPOIDhITT CHGh: 1st Ct: Common asault c/s 240 of the Penal Coda, 2nd Ct: Creating Disturbance c/s 89 (i) (b) of the Penal Coda. 3rd Ct: soault causing actual bodily harm c/S 241 of the P.C. JUDGL'lD.hfT, JON.ETHAN, J.: The appellant, a police constable eias convicted on One charge of common assault, on another of creating disturbenca and on a third charge of assault causing actual bodily harm, rcspsctivelr contrary to sections 240, 89 (i) (b) and 241 of thc Penal Coda. On each of the first two counts he was sentenced to 6 months' imprisonment ,whilo on the tnird count ha was given 9 months,ll the sentences being made to run concurrently. The evidence shows that offcnces in the 1st end 2nd counts were committed at Nyashimo Primary Court whilc that ii the 3rd count was committed in the neighbourhood of that court. iccording to Regina d/o Mwinula, P.W.2 who was the appellaiat'snoth —iai her daughter, wife of the apocllant moved with the children to sta with her anparantly for a visit. i fortnight lacar the appellant uno was in police uniform called at P. . 2's house where, after he hd do cined to parake of the food they were eating, ha bai up his wife with fists. PIi.2 intervened and she, too, was beaten up and it became necessary to raise an alarm. People came but it scans that before they did the appellant had inflicted with a stick a bleeding wound on the forehead. The medical report of her examination subsequently shows she suslainc:d a bone deep cut wound. She immediately reported to the Primary Court where the magistrate, P.h. I gave her a messenger, PW.4 to arrest the appellant. On approaciiing: the appe ilant the mc seanger persuaded him to accompany 1im to the primary court, but when they got there t10 appellant became .dtuhborn and refused to enter the court room, and as the messenger struggled to got him enter ho beat - -huh with fists on the face and on the head which thereby got swollen. The commotion forced the court to adjourn and the people who were there and around helped in getting hold of the appellant and bringing him to order. The accounts of P.h.I, P.C.2 and P,1i4 as regards the incident at the court house are fully borne out by the evidence of Enock, P.H.5. idd.rassed in terms of thc provisions of S. 206 of the Criminal Procedure Coda the appellant said he would give no evidence and would call no witnesses. In a carefully considered judgment the learned trial magistrate convicted him on all three counts. I am satisfied that the evidence fully justified the convictions. In his petition the appellant has raised two or three main grounds of complaint which he repeated at the hearing of the appeal. The appellant claims that after criminal proceedings were brought in Nyashimo Primary Court, they were ulbimatcly withdrawn by the complainant, P.h. 2. This seems to have the supeort of P.W.2 who said in answer to a question by the appellant that she withdrew thn complaint. It would however appear from the petition that this happened only after thc present proceedings had been set in motion. Be :la es it may, the appellant might know that the tarns of the withdrew/gould not hCVC precluded the prosecution from responing the complain -b either in that court or, as did happen, in anobiier court of competent juriadiction. I would eccor- dingly dismiss €-- complaint, .,' 2. /- Than there is a complaint not totally different from tiec first. The appellant says that only the 1st two counts were read to him and that the 3rd count was not read over to him. On the face of it this is not without merit, hhcn ha was first brounht before the district court hc appears to hvo answered to two charyo only, and I would bather from this that the 3rd count was not road over to him. However, the charye shoot, and thare is only one oharpe shoot in the file, is one of three charges, that i,s, includin the complaint of PH02. Mtor two adju nments by the first arr.aipniny mabistrete, ho case came before a11Qticr Inablatrote C1i1O appears to have causeo tee cnaryc to oc road over cycin and explinod to the appellant.. This time ho pleaded to c.11 three counts. I have no reason to doubt the authenticit y of the record end I am eatisfied that, immediately before the -trial commenced, the was informed of all three charcs.,. The other bround of complaint is in rejerd to renort Of modical c ninatioia Of tb -' no caor This i d Y n rfllCpLOCCd Ci a co.'ld not cc produced durinE, the trial,. It was not found until after jud;inont had. been delivered alien the mayistrato allowed it to, be tendered. I abree with the appellant ±ht the report should not have been received, that is,, and I would qualify, if it was intended teict tIiO court shohld Oct. on it in roechiaab a dcciroion, is it was, however, the decision had hcOn reaciae.d without it and its production subsceueaatly did iot make the s1ihtest. difference to the justice of the case.. It is my view, - if I may add s that in circumstancns as tnooe,, where an exhibit is - found only.±te delivery Of juclment, it is perfectly proper for the . trial court to receive it belatedly, for it may well provc helpful in an appeal that is subocquently prefdrred. The substantive sentence of 9 months' imprisonment, thou,gh severe is not so axcoseive as to call for interference/by this court. The apeeai is a000rdiubly dismissed in its antirehr. p•111• Joiiatnan, 16th ilarch, 1 .973 If