19781124 TZHC Dodoma1

W m THE HIGH COURT OF TNZMTIA 'ATDODOMA APRlLLATE JURISDICTION :ORIF'IINJI, A?PkL NO. 96 OF 1978 (Origina Criminal Case No,. 72 of 1978 of the Distrit Court of Manyoni District at. Nanyon.i4, KASHIMIRI M1.GONGA. . . . . .. . APPELLANT versus THE REPUBLIC. . '., • . .• • • • . • ' RESPONDENT JUDGE1T JOAiT, : ." •' , - :. te district court of ManyOi± the appellant was convicted of causing grievous' harm c/s 225 of the Penal Code and sentenced to 3 years' imp*isonment. H,6 was also ordered to pay the complainant the sum of shs. 2,500 as.cornponsatib.. The ajpoal to this court appears directed against the convictiOn There is agreement that, on the material night the appellant and €he complaine±t were involved in a fierce scuffle and that they both sustained inuies, those of the complainant being much the.more serious. They inclded a cut wound on the eye brow, another cutArowg on th' lower lip, a dislocation of the left wrist and a on the lumbcr region. They , arèall described in the doctor's report asgr.iovous ,härm for: which the complainant apiears to have been out of'woi'k for a fortnight. According to the complainant, he was on duty that night lOoking for some-one when he saw three men he could not 'idèntif order him to stop, whereupon, sudddiilyi a stone hit him • on the head.' The injury tias occasioned might have been • seriotis but for the fact that hwas wearing: ahat.Even so, the scar it left behind was still visible at the hearing of the case two months later. H nevertheless proceeded on that errand. It took him to a, bar which he entered and sat next to Pw. 2. While so seated, he continued, he saw the appellant cothe in being accompanied by two others. As to what... then happened, his account and that of Pui.2 are assent ial'l to the same e:Cfect. The appellant headed for the complainant and gave him two, blows on the head alleging that he had tbn his shirt. His shirt, howvr, did not appear torn. Those blows seem to have surprised.tl-n complainant to whom it seems to have dawned that the appellant had been the person who had hit him with a sto.e. \ The complainant, a5prehending - - thè'inbtive ... behind the attack bb robbery han ded over his purse containing money to Pw.3 while he fought off the attack. P02 then intervened but the tiude wab shortlired f or asthe ant:'wawo wa being - eorted ott of. the 1ar b P.2 the a?pélIant attacked him again, thereby throwing him to the ground. P.2 effectively stepped inhgäinbut'as the , witness ws"ecorting the complainant to the police statioa to report the incident, the appel'larit.,app'oaching from behindibeat him up again and threw him to the ground before disappearing with the other twopeople. - Pw.3, another police constable,happened to be the bar curing the scuffle and he soemstob 0.a out.the ±oit- going when he says he saw theapellant àlt ..Pvr,1 and he at onob . intervened. Even so,' 'he sys, the appellant,a little late, jumped on Pw.1 dgalnäid they hsd'again to separatethem. He would not know what haeiied out'äidC as he continued drinking inside the bar after the appellant and the complainant had left.' " 0 The appel1t 's account, on the other hand, was that he was oolli woodcarvings outside that bar.wher the .obplainant asked him for the re qtdsite licence. He replied that was not 'hin: business and asked hith6 rturn those carvings. He Uid pot. Instead, he sai.he dropped one of them tO . get damaged on the ground. He then went inside the ba and he followed him' there to. findaut why he had d'ama 4ed hin: property, and as the result,the complainant pushed him so hárd' that ho hit aaant the wall, hence his having had to be on the defensive. This' version' appOis supported by D'w.2 'hen he:says,. as he passed outside that tbar he".found the. apellaht and the ,. .. complainant pulling at a wood carving. He' however 'thought that theyowere di-iiñk and they were only playing. . ' The deciCion depended on credibility. It wasIthe apllant'C contention that it all arOse from daniage caused toa piece of carving occasioned by the complainant.' The latte± did however say hehad only' just been atteked with a s±ohe'and the scar he showed the OOurt bore :testimo to that Lavólved in the stone throwing incident iñust have been the same 'group as later appeared at the bar, of which the appellant was a member. This would therefore rule but the appellant 'a c ontention that the • quarrel" started at the bar.. Th apparent thinking of the complainant inside the bar would itsél± su'ggest there had been' no quarrel between them outside the bar. If there had been any such quarrel the complainant wou]4 have put himself on the alert when he saw the appellant entering and the attack would not have tken him by surprise. That he did not in fact know the motive behind the attackis to be seen in his reaction in handing over his purse to P.2, thirking the appellant was intent upon'.stealing his money. It would seem, therefore,rtt1.orehadben no incident outside the bar when the scuffle occurred.- The attack of the appellant on the complainant would in any case have lacked legal justification even if th mo'r had damaged tba la.tterts carving. The appellant claimed he acted only in self defence but the prosecution's case was solidly to the effect that there had been no offensive offered by the complainant. Both Pr, 2 and 1 vr.3 would appear --to have been disinterested witnesses and it is noteworthy that the appellant candidly admitted PT.2 was his friend. It was in such light, therefore, that the lower court received their evidence on which, I am clear, it was iply justified to convict the appellant. Accordingly, the appè'al against conviction is dismissed. The sentence of three years was severe;but in view of the appellant ha:.ing been convicted of similar offences on four occasions only in the previousfour years he cannot be heard to cry for any lesser sentence, and as it requires the coiffirmation of this court, it is hereby confirmed together with the order for compensation. In the result the appeal • is dismissed in its entirety. -' Delivered in open coui't this.24th daof i\Toyember, 1978 • P0 II, JONTHA TUDGE