19741030 TZHC Mwanza

-I IN THE HIGH COURT OF TANZANIA PT MWJ\NZJ4 APPELLATE JtJEISDI CTION HIGH COURT CRIMINAL PiLS 110. 1431 144, 145, 146, 1471118 OF 1974 (Origiiial CTiin:1 Cadc - Noo 395 of 1972 of th District. Court of Tarimo District at Trinio; Before T. B. Mtakyawa Iisq. 7 District M-gsrcto) MiThGOKO NYANGWE :c I1ARWA NGWE MAIKU 1YANGE . .. . NJAGWA NYAN1W.? MANGA MUNGOKO . . ( Original Accuseds).. MANG'FRA NYANGWE versus .. THE REPUBLIC.. . . . . .• • • • • •. . . . . . .. •. . .. .. . . . .. . .. . . . .. .. .RESPORTI)Ei'IT (Original Prosecu1or) HLBGE: Griovus harm c/s 225 of the Penal Code Cap.16 of the Laws, J U D G E M E N T LUGAKINGIRA, AG. 3.: The six appellants were convicted of causing grievous harm, Three of them were sentenced to six month's imprisonment and the other three to ten months' imprisonment. It was alleged that on 4/10/72 at about 5.30 p.rn the six jointly and together did assault one Mwita Machera as he was coming from a river causing him to suffer grievous injrics. The prosecution called, two eye - witnesses: P.W.2 the confp1cifl&1 -1ts son came to the scene of the assault in response to his father's a1arm Ho saw the six appellants busy assaulting the complainant and was himself beaten and chacd away when ho tried to intervene. P.W.3 likewise arrived in response to the alarm and sow the six appellants busy in their exercise. It is this witness and another person who eventually took the complainant to a nearby dispensary after the appellants had called off the assault on being alarmod.that the complainant had, died. O S . The appellants, who arc a mo -thor, her four sons andher daug1te'—in-3. first of all maintained that the incident took place at about 11.00 p,m and not 5.30 p.m. They further said the complainant was chased and assaulted because he was found standing suspiciously at the cattle borna of one of tham. They also said it was actually only one of the appellants who out 'the complainant with a panga in retaliation to a similar cut by the comp1ainaa't and that some of the appellants did not actually appear at the scene. They called, thro witnesses to their side who to some extent corroborated, their story. The question was who was to be believed, the prosecution or the defcnca. The learned trial Magistrate sct himsclf this question and procec. to reject the defcncc story. IJhcther or not a witness is credible is a question entirely within the trial court to determine. This is because the court has the advantage of seeing and hearing the wincsses speak and obsorvi::; their demeanour generally. An appellate court would normally feel bound by the finding of the trial court on the question of credibility unless the record reveals a failure to take into account material factors that could cast doubt on the witnosso's veracity. I have carefully gone threuh the record in this case but have not boon able to discover such factors. I have only noted, a single dIscrepancy in the testimony of the complainent and that of P.W.3. Thc former said when he was beaten he fall unconscious and was later informed that he was helped to the house of Kisonko Nyangwo a defence witness. .... ..... .. .. . . ./2. ..,•4, -,' -