19780911 TZHC Mwanza 1

HIGH CUtT u1 AT MWANZA. Alz APPELLATE JURISDICTION IGH COURT CRIMINAL APPEAL NO. 169 OF 1977. (Original Criminal Case No. 370 of 1974 of the District Court of Tarime District at Tarime - Before N. H. Bideberi, Esq., District Magistrate) _..NCHAIVIA MWITA........COO,O.00O.O.00OO..DCtCOOOCO..O.00..O......APPLJLLANT (OriginalAccüsed) versus -. THEREPUBLIC.00..000000.O..,00.00.O..00.00000000....O.00.....PESPONDENT (Original Prosecutor) CHARGE: 1st Cnunt: Robbery with violence c/s 286 of the Penal Code. 2nd Count: Assault causing actual bodly harm c/s 241 of the P.C. JUDGEMENT LUGAKINGIRA, J.: The appellant, Nchama Mwita, and one Mukoye Magige, were convicted on one count of robbery with violence and three of assault occasioning actual bodily harm." They were members of the People's Militia Or 23 March, 1974 they were armed with guns, patrolling the Tanzania — Kenya border at Bureoa in Tarime District. The complainants were Kenya aUonals 0 On the material day they crossed the border into Tanzania on various missions. They were intercepted by the appellant and his colleague. Wanditi Mwita Chacha (Pwi) alleged that he was then seriously assaulted and robbed of Shs. 60/= in Keriyan currency by the two. Abdi Hassan (PW2), Noharned Ibrahim (P 1,43) and John Marwa (PW4) alleged that they were similarly assaulted and injured. There was medical evidence in respect of all the complainants. 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 appeal." I have done so but I am not certain that the exercise was necessary. In his own memorandum of appeal the appellant admits using force on the complainants, saying he was on duty and alleging that the complainants resisted his authority and threaten€d violence. He never said any of these things at his trial with the exception of his having been on duty. Significantly, he confirmed in his defence that the complainants complained to his instructor of having been assaulted and that Wanditi further complained of having been relieved of Shs. 60/=. The encounter with the instructor was not long after the incidents. Then there were medical reports, exhs.'A. • B, C and D. With the exception of exh. D for John Marwa the rest speak of external injuries to the complainants. Exh. 0 speaks of posterior and anterior chest pains. Under the Penal Code, s.5 thereof, "harm" means any bodily hurt, disease or disorder whether permanent or temporary. Pain being a bodily hurt or disorder is therefore no less a harm than an external injury. The question of violence is therefore both admitted and was proved in evidence. The only other question is whether any money was taken .rom Wanditi. After giving the evidence due consideration, I accept the finding of the trial magistrate on this matter. It seems to me, though, that Uanditi, who crossed the border much earlier, was relieved of his money before the arrival of PW2, 3 and 4. I therefore consider doubtful the allegation of Moharned Ibrahim (PW3) :that he actually witnessed the robbery. It is strange that his colleagues did not see this. However, these witnesses were consistent that they saw the appellant and his colleague count money in Keriyan 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 Ward Executive Officer was not called to testify. Nevertheless, I have no reason to doubt the credibility of the complainants on this matter. Were they disposed to fabricating stories they could very well have claimed to have all bean rbbod and of larger amounts, -2- I am satisfied,from the foregoing, that the appellant was Droperly: convicted as harged. He received the minitnurn sentence for the robbery and just 6 months on each of the assaults, albeit the use of the gun. In such sentences I cannot interfere. I dismiss the appeal in its entirety. MWANZA ; • K. LtJGJJ(INGIRA JU DGE, •