19780911 TZHC Mwanza

~ /.I - r"-" ,,!/_ ~,4; ~ c:~ .J..n •,,HE .. H.1.· r~H v c······1 vur, · •. , .·,···z·NI" v,: .l.H,,, lL ,1. . ~, /a)LAt.. AT MWANZA .. APPELLATE JURISDICTION . 1,1 w- - - - - - - -------HIGH COURT CRIMINAL APPEAL NO. 169 OF 1977 • (Original Criminal Case No. 370 of 1974 of the District Court of Tarime District at Tarime - Before No H., Bideberi, Esq., District Nagistrate) - NCHAMA MWITA ••••••••• ·.oo~•<>•:•••·'••···~·... .,.~ ••• .,.· •••••••••••••.• APPi:~LLANT (Original·Accused) versus THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Original Prosecutor) CHI,RGE: 1st Cnunt: Robbery with violence c/s 286 of the Penal Code. 2nd Count: Assault causing actual badly harm c/s 241 of the P.C. JUDGEMENT LUGi\KINGJ:RA, J.,: ,. The a.ppellant; Nch'ama Mw~_:ta, and one Mukoye Magige, were cor:victed on one count of robbery with violence and three of assault occasioning .actual bodily liarm.· They were members of the People's Militia~·.. ()P.. _ - 23 March, 1974• they were armed with guns, patrolling the Tanzania - Kenya border at Bure~a in Tarime District. The complainants were Kenya nationals. On the material day they crossed the border into '.L'anzania on various missions. They were intercepted by the appellant and his colleague. Wanditi Mwita Chacha (PW1) alleged that he was then seriously assaulted and robbed of Shs .• 60/= in Kenyan currency by the two. Abdi Hassan (PW2), Mohamed Ibrahim (PW3) and John Marwa (PW4) alleged that they were similarly assaulted and injuredo There was medical evidence in respect of all the complainantse The trial magistrate reviewed the evidence at considerable detail and found the allegations true. He convicted accordingly. My brother who admitted this appeal to hearing minuted! "Re - visit the evidence, and memo of appealo" I have don,~ so but I am 1:ot certain that the exercise was n2cessary. In his own memorandum of appeal the appellant admits using force on the complainants, saying h8 w~s on duty and alleging that the complainants resisted his authority and threatened violence., He never said any of these things at his trial with the exception of his having been on duty., Significantly, he co1:firmcd in his defence that the complainants complained to his instructor of having been assaulted and that Wanditi furth-:::r complained of havin<J been relieved of Shs. 60/=. The encounter with the instructor was not long after the incidents. Then there were medical reports, exhs. · ll.. B, C and D. With the exception of exh. D for John Marwa the rest speak of ext2rna1· injuries to the complainants. Exho D speaks of posterior and anterior chest pains. Under the Penal Code, s.5 thereof, "harm" mea,-:s any bodily hurt, disease or disorder whether permanent or temporary. PiJ.in being a bodily hurt or disorder is therefore no less a hnrm than an c:xternal injury• ·The question of violence is therefore both admi tt,~d a.;:~d was proved in evidence. The only other question is whether any money was takGn ~om Wanditi. After giving the evidence due consideration, I accept th~ finding of the trial magistrate on this matter. It seems to me, though, that \-Janditi, who ~rossed the border much earlier, was relieved of his mor~ey b:..;fore the arrival of PW2, 3 and 4. I therefore consider doubtful the nllcgation of Mohamed Ibrahim (PW3) tthat he actually witnessed the robberyo It is strange that his colleagues did not see this. However, thQSC v1itnesses were consistent that they saw the appella;·,t and his collca9ue count money in Kenyan currency., They also saw the appellant's colleague hand it, or . part thereof, to the Ward Executive Officer to whom Wanditi had gone: to complain. It is unfortunate that the Wnrd Executive Officer was not cnll2d to testify. Nevertheless, I have no reason to doubt th2 credibility of the complainants on this matter. Were they disposed to fabricating stories they could very well have claimed to have ull b,2cn robbed and of larger amountso • C, • • • • • • • /2. I am satisfied, from the for2going, that the appellant was .properly.· convicted as charged.· He received. the minimum sentence for the robbery and just 6 months on each o'f the assaults, albeit the use of th1.; gun. In such sentences I cannot interfere. I dismiss the uppeal in its entirety. Mt\TANZA .. · _.11/9L18 .,. , -·--=-.. -=1~cuwJ·· . . . Ko S.··Ko LUG1J<INGIR.l\ JUDGEo -· - ~ '.,. .