19760420 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA AT AflUSHA APPELL.& TE JUISDICTION HIGH COURT CRIMINAL APPEAl NO. 402 OF 1974 C/F MISC.. CR. NO... /74 ...., 1 C/F. CRIM. APP.162, 206 OP1974 • ORIGINAL CRIMINAL CASE NO. 292 OF 1972 OF THE DISTRICT COURT OF HANANG DISTRICT AT BABATI MING7L s/o mLvrt •,... .. APPELLLNT (Originàl 6th Accused) versus • THE REPLIC • RESPONENT (Original 'osecutor) JUG1tE. JONATHAN, J. The three eppo11aiats, Haiia He16, Boml3o Bura and Mingwa Maayu, who in the lower court appoared s 2nd, 3rd atid, 6th accused,. respectively, which dcscriptions I propose to retain in these appoals, and four others who have not apea1ed,. were convictedjoint1y o± assault c aus inE grievous ham. The 2nd accused was sentënôOd to 5. ye ars t imprisonment and each of . the others to 2 yarsL It scene .uadisputod that, ator someone had reportedly been assaulted at the house of coinp1ainait. in 'this.;case). who :ra a ionberof.Tanu YoHth Leagic end. P.7.2, the Jard Execttvc Officer, proceeded to that housc to arrest the assaiJcat It elso seas undlsputed.that, Hayuma obstructo d them by preventiiig them frbm entering his house to arract that trouble maker , w aerupon both P 1.l and P V.2 1Jerc beaten up br soe of the eop1c who were there, presu.riably, drinking or having been drinking. The complainant 'sustained. oxtOnsivoaiad Sclrere injuries arising. from which he was fo:c some tine unconscious and.had to be hospitalised for nearly 11 weeks.. It ae the prosecubio case tL' b hc complainant was attached by all th seven acQuscd and oni or two otheis who had as yet not been arrestod. For this bhero was. the evidence of not onlj P.i .1 ano. P 7.2 b'XG elso that of P i\r3 and P J.4 who happened to be presen. :. Tho gistof their evidCnc,: and I' nay say , theii • .a.' testimonies are esseit14l1y identical, may be stated. The 2n.d accused (let apIlnt) iding and abetting th action of Hayuna, the house owner threatened to beat up the complainailt bein, quite prepared to pay such fine as might later be po.sed;ipoi him. He then ordered the other accused to beat him up.. . . He... ......., ../2 - - . 1 -2- i He himself started the onslaught 59atipg his .t1g1a with a stick bliereby -sond.iug The. alaiiiont to the grothid' where ho directed another -blo -,ri to the ankle, and it is pertinent to point outi that, tiic dcictoc's reporc shows the coriplainonu s heving susteined, among other Lhings, a fracture of the loft .petClla and another àf the fi'oula. The witneases are clear that all the other accused, including the 5th accused (not an appellant) who had älreadf assaulted P.W.2 with a stick, joineL.iii and attacked the complainant with sticks directed maihly to the head and it' is pertinent again to note that the medical rephi't' shoivs him's•having suffered multiple bruises and a cut wound on the head as well. P.W.4 seeir the atthck loft to 'report to the police. fRe soon returned, with them to fin. the 2nd accused present at the scene The complainant as found lying in a bu,sh near-by having regained coascioisness. It is fuxther in ,'bhe evidence of the iiard executive officer that the 2nd I. acCused' upon being arrested mentioned all the other accused to the police. . . . All the accused persons in their tesi:aoiies denied being pr.osent..at- the scenc.. at the rcle'vanu •tL.ie, and in the case of the 2nd accusc.d no a)poars to hevc sold that he came there only long after the incident had 'ocurred. The complainant was familiar with some of'th'c cciised,whle P.c7.2, P.W.3 and'P.W.4 appear to hve known .hem all. It was not dark then when tl-ip, incident....occhrred and the witnesses In my view were in a 'ositi'on" to be clear which of the people who ware there beat up the coaplainant. 'The accused, of' course, said they were not present, but 'in. .the absence of any indication that the various witioses. had reason to say they had. been present when They had not, I am satisfied as was the lower court that their alibis really stand no ground. Accordingly, the aapoals against conv±ction are dismissed,. The aentenos passed on 'the 3rd and th: accused cannot be considered as being excessive." That drthe" 2hd accused is clearly severe but he not only incited the others Lthe first but was himsalfLto strike brutally 'at tho complainant and while I myself may not have iiipoeed stch 'a .heav,y ,seito.iice, it is not so nanifcstly excessiva as 'bo call iCr 'interfeience. The Sentences need the confirmation of thie, court', and they are hereby dui confirm"d. (P. M. JONATHAN) JU'DGE. Judgnent delivered in open Court at Jsha this 20th day of April, 1976. (p. 1.1. JoNL.THLJT) PMJ/MTPII .'""'' JUIJG-E.