19760630 TZHC Tabora

— 4-k44-*11 - I IN THE HIGH COURT OF TANZANIA AT TABORA APPELLAT1 ..JURISDICTION (Tabora Registry) CRIMINAL ALPEAL 00.82 OF 1976 ORIGINAL CASE NOo 206 OF 1976 OF THE DISTRICT COURT OF NZEGA IDISTRICT AT NEGA Before: C. H. Msamati, Esq., District Magistrate. Paulo Mateo •..a.••.oe•, •...o s,... .. •. •........ Appellant VersLs The United Republic ...,................... Respondent CHARGE: Un1awfi1 wounrli ng . cc.trary toction 228 (1) of the Penal Code, Cap. 1..of the Laws. JUD GEM E N T SISYA, J. The appellant c,a hrged with thi dfe of Unlawful wounding contrary to section 228(1) of the Penal Code. The particulars of offence read:-. "That Paulo Mateo.is chrged on the 30th day of March, 1976, at about 12.00 hrs, at Tong. village, Nda].a area s within Nzega District, Tabora Region, did unlawfully cause grievous harm to one Joseph ,Ktirna. byshootixig hin with an arrow and caused the said Joseph Kátime to suffer grievous harm." At the trial the appellant pleaded.guilty. The facts as narrcitedbythelarr$d public prosecutor were to the ef:Eect that on 30/3/76 at 11.00 a.m. ninety members of the peoples' militia accompanied by a yard r secretary and a tANU chairman proceeded to the house of the appellant tt Tngi vi11ag.e apparently :with. an intention of trying to cqnvince him i.e. the appellant, to move, intp an Uja village. The mob met the appellant on the way and they explained to him the .purpose of their coming. Thereafter, they all,, including the appellant, moved to the apellantts house. On their arrival the appellant entered his house and came out with a bow and six arrows. He, appe].lant, "fired the arrows" at the mob whereupon one c T the arrows caught the cbmplainant, one Joseph Katimaa, on the chest. His PF3 1 Exh."13" , sho'ws that the complainan€ had a 3tz . deep cu.oUfld;lutdTer • . ,. - . .,. .,. . .... skin- on the - - - - -- - )Cli& LiU - .- - J -fl ç çp IL LLç1 gJje- C)fr)I?-LJ r4 < jj ' L. CJLJ Li4: !1J J . J.J TX ft2' Ft 2. r' T- - ; -c Tic c1jc- Lt j:; - ;J p: IJ4t3 c L r L ' 1iip ç •A.tj Ji 4 .-: iL.u;ii0 LtI AJE ELç..Yt7. UJ J TJj p4LL'IJ ttC C:qC 4 JJ' J !T çp •• •-•. -• s. 1ct c• n •' - IJT -; . - LfTpJc i' noz .• ç. - çc Jc c- °'.' 3o\3\:\ -xc ii°oo - -•-' -. iNS J _ q JT) c.- - iz. J(t(1' Afl"Jrvc 4 ir2 4:0 2LC4:TC)J çpC;J9iç0q JJc; bgtçTC-iJJL o :• o bjg ç4 cie cGJD:pJ (g wgg' oiy çjjG çp çps :wo, ouo C çpc tor cidp ipGt.q -JJ4Z ,JJOIG - 91 CLUGOiç pGbJ4Jq2( SiOM2" - H& ic'? ;u1oeq ço .4Lt tp •O owru pG MJ bbe wc hbrç cj gç ç puj Tw JG OGL F$- ivmp ScT ?ECLGtJ 9iJq i 8, 111M cpntwi.0 bOCGGqGq 4:0 4}1JG :J)oJo 0 •!i gJb' - f.g3ç QJq GU$ 4WJ %OLj62 'A cj'g°u° q ' bo:crjço.t fl$) J7f MGLG 4:0 4:JJC 0 Q 0 0 0 0 0 0 *0 'QW ,4 3 ~ -çpiç oi.r 9 0 0 0 0 0 0 0 0 0 0 0 00 0 g hI.)6 bbegiiç i4c Etnr jç Lpo -gçe g v.Luoq p p. çpc aq '02GbJJ j<.cui ;:o ric-t. ä-t-!On2 J9LW' 4:JJG 4-cLJ -G I6CLs C' a;'Y F'2C r2LTC4 id.xçc 0 01W D2GJJJ 4W' pA 2004:TUcT- ppt .Mflf -) i-ott. ________ DT 2 cLTcc JJ1)E )3 cr -n n g1-tjJfl- J- ?. cu i;ul -2- the skin on the fron part of the chest. The wound is shown to have been "not dangerous." In his petition of appeal which was home-made the appellant gives an account of what happened on theday of incident and raised the defence of self-defence. On this I would have readily told the appeilant that it is now too late in the. day to raise the defence but on reflectIon I feel the story given by the appellant in his petition has, as my learned brother Mapigano, J. minuted when admitting this appeal, a ring of truth. The appellant contends that he spoke in Kinyamwezi at the trial and he tried to explain the root cause of the incident but without success. This sounds plausible. In his petition of appeal the appellant contends that when the group, according to him of over a hundred persons, came to his house it staged a parade and then started to demolish his house and assault him, He, appellant,: therefore fired the arrow in self-defence. If the learned trial magistrate had paid attention to the appellant's explanation I do ndt think that he would have entered a plea of guilty. From the facts It is clear that the group talked to the appellant who then agreed to be shifted. All of a sudden the appellant then turned hostile and violent for nothing. I find this difficult to comprehend. More so when the appellant, as he himself also contends, is not a mad man. As it was held by the eourt of Appeal for East Africa in the case of Kato v.R (1971) H.00D.364 "If it can be clearly shown that an accused person has admitted all the ingredierts which constitute the 'offerce chargedi it is then proper to enter a plea of. guilty." Again as was said by the same Court in the case of Rex v. Yonasani Egalu & others - 9.E.A,C,A O 65 - "In any, casein which a conviction is likely to proceed on a plea of guilty (in other words when an admission by the accused is to be allowed to take the place of the otherwise necessary strict proof of the charge beyond reasonable doubtby.the Prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but that he shoul:d:be required to.adrnitor deny every constituent and that what he sayshould be recorded in a form which will satisfy an appeal count that he fully understood the charge and pleaded guilty to every element of it unequivocally, In the present case, I think, with respect, that the learned trial magistrate should have explained to the appellant in clear language every ingredient of the charges and required him to admit or deny the same and recorded the exact words the appellant used 1. in his admissions or denials. The learned trial magistrate could even have asked the appellant why he sudde1y behaved in a violent .£ manner. In this case the appellant admitted facts which do not support the offences charged. This brings me to another unsatisfactory aspect in the case. The offence - section and law shows that the appellant was charged with unlawful wounding contrary to section 228(1) of the Penal Code. The .....3/The particulars of 9 3 - The particulars of offence, however, are those of doing grievous harm a contrary to section 225 of the Penal Code. In the absence of any amendment the prosecution is bound by the particulars in the charge. In all the circumstanáes, the trial of this case was insatisfactory0 The conviction and sentence cannot, therefore, be allowed to stand1. They are accordingly set aside. The accused should be released forth-i with unless he is otherwise lawfully held TABORA H. E. D. SISYA, 30/6/76 JUDGE I certify that this is a true copy of the original. DISTRICT REGIS RAP, TABORA.