19750422 TZHC Dodoma

0 IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIH COURT CRIMINAL APPEAL iO. 244 OP 1974 ORIGINAL CRIMINAL CASE NO. 195 OF 1974 OF THE DISTRICT COURT OF NJOE DISTRICT AT NJOMBE BEFOREY.S.MPERELLA ..................... DISTRICTMAGISTiti. NGAPONA s/o MANGOKA. . . . . , . . . . . , . . .APPELLANT - VERSUS THE REPUBLIC . . , . . , . . . . . . . .......... . . P0••• • • • • • * . . RESPONDEi. Char: Unlawful wounding c/s 228(1) of the Penal Code. JUDGMENT MAPIGANO J. The appellant was convicted of unlaful wounding anq sentenced to si± months imprisonment and ordered to pay compensa-- tion, Shs. 300/ to the victim. He has appealed against the sentence. This was a typical bar brawl0 The appellant quarrelled with the complainant, one Esther ; who was working as a barmaid at the Kaye bar in Njombe. Esther had appeared reluctant to serve him with a drink and there was an exchange of hot words bef ore the appellant gave her one fist blow on the mouth She sustained a wound on her upper lip. On sentencing the appellant the learned trial magistrate made the following ohservation "1 think the main dilemma in this district is woman and beer. There are so many people who have been taken in this trap and the accused in this case is by :'- means the first. Government officers (the appellant was such a one) appear reckless and trouble- some when drunk, that they become a nuisance in the pc place I therefore feel that this court has a duty to impose statutory sentence (whatever that means) in the pronounced casesihaover those are)0 It is only a deterrent sentence which will restore the equilibrium of the tranquility.' This appeal is on the ground (1) that the learned magistrate took irrelevant consideration in assessing the senten and (2) that the learned ragistrate did not at all consider the mitigating factors, namely -: that the appellant was a. first offend' that the assault was minor anc that probably both the appellant and the complainant had been affected by dri' . . I would agree that this was not a case where jail sentence should have been imposed. There were material factors which argued against it. The appellant was a first offender and the complainant cannot escape blame f or tthat happened to her. She appears to have been truculent towards the appellant and she more or less incited him into jabhing her. And the injury which was inlicted on her was not all that serious. I think therefore that s fine would have net the situation and restored "the equilibrim of the tranquility." I uphold the submission that the sentence is manifestly excessive. I therefore set it aside andsubstitute a fine Shs. 300/= theref or. The order for compensation is not disturbed. B. P. Mt2IGANO JUDGE Pronounced in Court Mr. Chambakare for appellant Mr. Mbilinyi for Republic 22/4/75 B. P. MfPIGANO JUDGE