19771122 TZHC Dodoma1

- ,c. I I IN THE HIGH COURT OF Til.NZ.LITA AT DODON.A APPELLATE J1JRISDICTION CRIYiINAL APPEAL NO. 119 OF 1977 ORIGINAL CRIMINAL C.tSB ii!O. l 7i .OF 1977 OF J'HE DIS :CRICT COURT OF KONDOA ' 1 . BEFORE M. A. UPAG!l. 9 ESQ., DL:3TRICT L'.".1.GISTRATE THE D.P.P. •• .. .. • • • • • • •, li.PPEi.iLANT (O~iginal Prosecutor) Versus PETER IKUNGETA .•• .. • • • 0 .. •• • • ::1.SSPm:DEJ.'ifT (C:ci;~i1al Accused) CHARGE~ Assault causing actual bodily harm c/.J 241 of the Penal Code Cap. 16 Vol. I of the Law£', JUDGEMENT~ MWAKIBJ~E 9 J. 9 - This is an aJ_rpeal by- the D.P.P. The api_)eal is against sentence and the order of compensation whereby the lower court had sentenced the respondent to a fine of shs. 500/= or six (6) months imprisonment in default. It was also ordered that res1Jondent paid shs. 500/= to the complainant .:i.s compensation for the five teeth lost by the complainant as a result of resrJondent 1 s act. Respondent had punched complaina.nt at the mouth causing hiE1 to sustain the injury. It was the Republic 1 s case that botl1 the fil'le and compensation were mP.nifestly inadequate 9 taking in to acc01:·0.t l-he nature of injury inflicted. The record shows that the complainant and the respondent were friends. At the material time the tw0 had been drinking together. Then out of the blues the res)ondent punched the corr,_-~ainant at the mouth 9 once. No lethal weapon was used and no ill-will whatever was indicated. According to the respondent 9 he thm'gl"t he was jolting with the complainant. That was probably so 9 but he "-sed excessive force in the process. On the other hLnd the t\-Jo had been drinking pombe and 9 in the absence of motive for the assault the possibility that the blow was administered unde:: the ir,fluence of j drink cannot be ruled out. Clearly 1 the assault, 1'as u-.,_lawful - but the circwnstances of the case are dev·>id of that stigma that would in proper cases call for o. r:1ore severe sentence ·an the one imposed. It was properly pointed out by both -,:,t;:1sel tha~ ·cheamount of compensation awarded was not based G11 any evi<Jerice that tended to suggest the cost ot replacing the lo,.t teeth. ·.fet it is open to the complainant to file r, civil suit claiming damages for the · injury and for loss of teeth. For this reason I feel not inclined to disturb the amount awarded. In the final analysis, therefore, tl,e appeal is dismissed in its entirety. Dated 0, t Nbeya this 22nd day of Novein1e:r. 9 1977. ! •, '(·'. :,J\L;:/i ,; .. ( MO JO !-"' ; .t\.i'BmTBX ~ MJ3E~HIGH COU1IT,