19730530 TZHC Mwanza

; IN'THEHIGfl COURT OF NZNL a HIGH C0U1P ChIIIINL .trPiAL NO, 407 OP 197 Original Criminal Case No, 130 of 1972 of the Ditrict Cc$itt of Tarime District at Tariine Before J.L. Mwalusa'a, Esq., Resident Magistrate, - - -. ROBERT KRARI0 . .. , , , . . * , . . . . , . . . , . . . . . . , . ,., , ... . . .. . APPELLANT (original Accused) ,.varsus. . T HE REPUBL IC ...........• • . . . . . , . . . • • . . • , • . , • . .• • . • . hESPONDENT. (original Prosecutor) CHARGE';. unlawful wounding c/s 228 (1) of the Penal Code Vol.1 of the laws- 1 JDGEMENT EL-KINDY, .tg4- Robert s/o Keràrio was charged with and convicted of unlawful iounding contrary to section 228(1) of the Penal Code ap 16. He was st6d to imprisonment for six months and to pay shs. ioo/— as compensation to Paulo iviwita Murua (pwi). He :.ppealed against conviction, sentence and order. The evidence, which the trial court accepted, showed that on the 17th day of May, 1972, the appellant assaulted the complainant, Mua (pwi), with a club, when the complainant was standing in the butchery, and caused him to suffer various wounds. The appellant agreed that he did so, but he claimed that it was done in self-defence 1 However, the learned trial magistrate accepted the evidence of Muria, Chacha (p42) and Nyamunugu.(PI3), and held that the assault was effected in aggression and not in self defence. The appellant alleged that when the complainant wanted to assault him with a panga, he reacted by hitting him first. However, the evidence showed that the complainant . was neither armed nor in a position to attack anyhody. I find that the trial magistrate was entitled to hold as he cLid. On appeal, the appellant contended that the learned trial magistrate erred in believing the evidence of Chacha and of Namanugu. He submitted that they did not tell the truth in court. However having regard to the evidence on record, I cannot see in what way it could be argued that the learned trial magistrate erred. He had the advantage of hearing the said witnesses and I see no valid reason for disturbing this finding of fact. The appellant alleged that the complainant was a paramour of his wife (P2), and that on the material day, he found him in intimate embaracing with his wife outside the butchery. He said the complainant ran into the butchery where he followed him in while his wife ran away. The complainant claimed -that he did not understand why the complainant attacked him from behind. I doubt very much if the complainant was telling the truth in this respect. There was evidence which suggested that he was, on the material day, in intimete embarace with 'the wife of che appellant. This, as the learned trial magistrate appreciated and took into account, was provocative, to the apoellant, but it wasno defence to his act of wounding the complainant. It was unlikely that the appellant would have wounded the complainant without some cause. Chacha and Nyamarungu .aid that they did not know why the appellant was assaulting the comainant. Having rega;.d to the fact that they were in the butchery shop, they could not have seen what went outside the butchery shop before the complainant went into the butohery shop. The circumstances leading to the attack were taken into account in sentencing the •eppellant. The sentence of six months 'imprisonment cannot he saidto have been excessive having regard to the fact that offenoesof violence are prevalent in the District of the appellant. •*b•es•.. •/2. Zz probably, if the incident had occprred in another District, where such offences are not proaIeIt,' a much softer sentence would have ce,r.00mpentióñ:. for personal. violence is justified. -. snt3nce and order is hereby dismissed. ... .. . b . . . . . . . . Delivered in Court, atMwanza, on the 30 day of IIay, 1973. .. ,. j ( \ — 1., •:...... •./T ( V • . N. KINDy) (z. JtJDGL .. •_•i ...... • •( - J Mr. Bttamba1a — State Arny f o r Republic. Appellant absent. .1 ,:.:,..:.J . ............j. 1. ......... . . .: • - . • . :.............. -. ., . • • L . w:v ........... . ...... tL.3 ........... ;.: • .... .-.. •I...• \) UrflLf :..i :..::. • , .......... •. .. . . .• • .flfi• . •,.r ..H: .•;. .... fl .: L. i1 ..... •. . I;......... . ,. I. •:, •. fli. :5i ' 1. c,.:.. • .: •:•... . . •: rs. .. s ,:. .; s. n 1:.5 s .: cr ! f5. .c . 55 . ... . c,: ..................• .. ,.;: s............ ::;s.:fl-: 7. • ..