19760301 TZHC Tabora

i) IN THEHIGiC0tJRT OYTANZANIA \ — AT TA3QRA. - AP1thJLATE JURISDICTXON I (1 • . --....-.. .. '' HI.G.H. COURT CRIMINAL APPEAL NO. 6 OF 1976 Criminai App, No.151/76) - (oriqinal Criminal Case No.563. of 1975 of the District Court of Yzegh District at Nzega - before C. H. Msamtti, D. Magistrate) • 3.. HERMAN KAGUNZ4A APPELWNT . IBRAHIM RAMADHANI .. . ' i(Or.iginal a ccused) i: V versus.,. - :• V THE RESPONDENT (Oriqinal Prosecutor) CHARGE:- 1st 7cou3jtt. ,Common assault /s 240 of t,hg.. Penal Code. • 2nd count: Abusive langu9e /s 8.9 Panel Code. • c V V.. V #1tJ 3 V'V -- -- - -- - r' -- - V V V V J'QD G M E N T V 1 ...IIIAPIGANO., J. •. •. V .•,- ,c• ' •,: V The two appellants Herman Kagunilà and Ibahim Ramdhani were VV V NUTA officia1 in Nzega. Act3nn a report that the complainant had not paid . dyes to his employees happeulits set outo search for him.. Thcre was b1ieab1e ev,denc batte complainant sccessfully evaded them' for sometfine. pwver, ic teYeentually Tret with-him oil/10/75 and they conronted him. The cc'mp3ainant alleged that the,lAf1rtt appellant abused I him Sb tnz1,' I imattyj11 nd that h pocked his finger into his eye. And furthei that liter both appellants huhdled him onto their lorry after punching him.. He was made tôp' the dues to his :em•pioyees. . But he went to the plice station to complain about - the treatrnenthe had received from the appellants. Following that, the appellants ere arrested., charged with and tried on • • .. common assau1t and using a1busive language.. They were convicted V VJ, both offences and sentenced to 6½ the • V first count and to 2 m9nths,, imprisonment , on the second count, • They have ' preferred an ap'ea1 against the convictions and the sentences. . -. ± am - 2 - I átñ in ageément.1 €h both learned.cosel who rgud this appeal that t e e..videncef E.W2 Saidi Ally and P,W.3 Thoma Mhonje was the most indePendent ad relihle q. These witnesses were present at the .sene of confrontation. They confirmed that the first app]ilafl. did Utter.,the jnuts and that both apellants pushed the complainant onto the vehicle. They / however, denied thAt thç first appellant thrust his fir)ger into / the complainant's1 eye afld tt, e comp3.ainant was punched, Tn J. spita of their evidence the trial magintrnte,4.Ccepted the JI testimony o te complainant a.a 1. who.e and acted on it. I j. .- .!J . think that it was risky to do so. I think the complainant wa capb3.e Of magnifying the whole ci :tnd t44t that was not at urixpected ma case of this nature Onty part, therefore, '±iii take the evidence of P8W.2 and P̀bWA'as the true account / of what actually €ook.plae. 0• •.; . 4 . . . . ..: to On that evidence, it seems that there was nothing connect the second appellant with the second count0 4t is clea1 • that the: only person who abused the complainanwas the first appellant. I would agree with the submLssion that the ahse were uncalled for and that in the circumstances they were capable of causing a breach of the peace0 With regard to th:e as.sau1t, I am, as indicated, inclined to believe that all that the appllants did was pushing the c9nplainant into their :lorry. Most likely they did t.tutóf anger. All the , s:me, there was no lafuixcse.for . them to do Sb. I think, therefore, that their conduct anounted to common asault. I now turn.to the sëntencés. .1 think there aresome merits in the appealsin that respect. ..woül'd think that the sentence on the first count was ekcessive. The offence was a minor one and asI have said, it is most lkely that the ppelant ehaved ••-• . .... .. t • .- - as they did out of anger. The Coxnp1ainNt adtrieft to *j'd them for sometime. As first offenders they deserved, I thin.<, a more lenient treatment. Further, I thnk the learned magistrate erred in directing that the sentences Should be served consecutively. He did not give any reason for that. The practice has always been that where a person is cnvicted f6r more thai one ffence committed at the same trne and in the saMe transaction, he is to receive, save in vTèrj exceptional 1cirumstances, c-oncui±ent sntences of. imprison- merit See R. V.Mikas (1946) 13 E.A.C. 97, i - i ...../3 For, •'1. 3 W)á1¼ I Mv aj,d, will dipi 1le appp the ftSt 8jpl&t 1rrnaii s regds the oiEtioi, will I hoWever reduce 1i se o th fiEs oirit to the Ith5 imprionterit and dizect e eF/ed oncurre"t %4th that n the edod tou, wii djsis e apeal IT oE t1 eoid ppel1n bf$ e &iliE4.iôi ofl - V - - the 1t otn't aitd teded the áenee thereoi -.6 1ee V - V •V ñot* £ioiMt, I Wi1 allow 1s appeal. horK VJVe Eonw o t ebtid Oñ M à1dé ti½ è r te 1ic heé6i acordñg1y. De 1iVeted'. / jobW" TAIöRA p. MAPIGAN' JUDGE t,- /