19781013 TZHC Mwanza 1

iN THE HIGH COUIiT OF T1ZL1I £T Z ii PPFLLTE JUEISDICTICN HIGH .dOT CRIII'LL FFE!:L NO, 90 OF 1977. '(oIanJL CRI"lNL CiSE NO.' 46 OP.1977 OF THE DISTRICT COURT OF TJRP-tE DISTRICT IT TEIiE) .. .BFFOIE.. J. T. B. KFUK0 ESQ., SEI'JOE GISTRTE J UM 13 @ BURU ISSA JIPPFLLLNT (Oriina1 JCCU5e) yr sue TI-IF RFpUB4 C . . . . . .... . . . . . . . . . . . . . .. . . . . . . ... . . . . flESFO1'DENT (&iiginal rc.se cutor) CHLhGE:— IstCcuirt:— Thro:.tin: with violence, c/s 89 (a) of the Pi:aI Ccc 'Cap.16 Vi.1 °1 the Laws. . 2nd Coun,:— Griovcus hcrm, c/s 225 of the Penal Code Cap.16 Vol.]. 'of the Laws. 3rd Count:— Escapin& frcrn 1wful custody, c/s 116 of the Penal' Code 06p.16 Vc1 of the Laws, JUD.GENT LUGKINGI1L j• . .. . The appellant wld appear to he dumb vicious. On th niht of 7/10/77 he was a1ia(?d to have chased S.t. ajo Chikusa and one Zuhura llaii as thy welkec. towards .Chikusci's h use at Terime. He was rvd with a simi. Next day he was arrested at the •iorkat place and hnricuf±ed. Yet, he was .1le, 'd to hv' succeded in grabbin Chiku.sa by the neck and kicking him. By thisasse.,ult Chikusa was said to' have suffered multiple ecraches' about the neck and multiple 1ccCrati(:ns and contusions about the 1eg When this was over Chikusa left''the: appe1lan - in the cstody o± No. B9475 D/C arkct (si'c)'t lock for tran'sper. It was aIlo('.ed 'that the' apei1ent then escped aftr pushin D/C aiket. From this series of events thr' appellant was chared with and ' nvt' of threatening violencn c/s 89(a), occisi'nin riv us hrm c/s 225, and cscapinL from lawful custoIy /s 116, all of the Pen ... COde. He was setenced to concurrent terms of six months' imprisonm°nt on the first and second counts an'd twelve months cn the thir count. Frcm the record the ai.:pe 11 n -t communicated by si L:.ns throu'h his mother. He wa6-a1so dvi'ed' ti conciuct any cross—examina -ticn by written questions but avi1 himself of tht opportunity. Be that as it my, he defended himself anu denied the accusations, char:in the police with hr utality. He ad'nittea I unLin.. home handcuffed - presumably to escape fur ther punismert - bat denied possassini a simj The trial Ma.istr,•ta b'1i-'ve,,th' witnesses .arci aniered ci:flvictions s aforesaid. .... ......... Chikusa and Zahura testified on the i.iç.ht incident. They sttod that tho appellbnt chasod them, for no apprent reason, with di raised simi, Like the trial mu.,istrato I h ye no reason to doubt that. I a&'rae that the appellant behaved so nc': find th.t it was en unlawful acto . . . . . . . . /2. 2 Tho rrnblom is which rrc.v itnfTth law was offgnu'd? Ctainly it ctid nct be s089(a) fr that is unknown to -tho Fonal Cok. If s89(i)(a) was intn', -that C0flCTflS th6 uso of obscn, obusivo or insultin: lan. uae and riot the brandishij. of frighteninn instrument. If s089(2)(a) w -A it'nc thi c ncr1ns thr toning' 'aurn br'ck or injure any isos .Ibsons V. mo,:in f.'ct, tht dvancin en a persen with a ri-iissi simi or sword d.00 riot fit anywhere under s.89e It canaot fall undar subsoctin (2)(b) because it is not ejuste'n orcri witi aisor rc in fircrm0 I th.rik th t rr lii an the fall unoer s.222(2) 1 tht cf.c1"in acts intnt1ad to, rieV.:.'1 : hri L1trnativo1y airi depci,dini on • - the fabt; 1 unt to an ssault under s24O Urifrtunte1y, w1iicha\-r of tties my ae.. th correct offence cannot be substitutci for an off'onc urianr s89 They aTO not minor to it. In the circumstancs • j will r iot 1 ntly cquit tha .pGllant on th first count There was nc i?en to suplort the secona count, other th0n a FP30 The ccnlainnt Si.. t 0 4ajor Chikus merely sith''-.ocused j.unpoci on me arid cuht my . thro&t nd kickc:, me o" He spc-k of injp.r.i(.,, s, f riv.us or r-thrrwiseo Evn D/C rket whc., was at the scenC never tstificd tc- any hrm 0 H' 5rj..t!W6.:Wantçd. -to hand- cuff accused but he bot D/St0 Chikus •anc rabbin: (sic) his neck." By rosson of this'ovidnca I arñinclinrd to th-.uct tne seriusnass of the PFO3 particularly s its author WS n;t calle ttstify. I find, ca.ntrary to the trial m istrte, that riev.aus harm was not pr. -vod. I wil. disturb theY 'convicti:,n an tht count s well. How the apollant was alle.ed t have escaped frrm cusdy. is r ther flU5ifl 'rfl that he was handcuffed. Moro than that, there wore several pe'plo ar , und. D/C arket. eid:. "Whj Chikusa loft accused sb utecl and p.:pl- came. Accused ran 'away. hold him but accused pushed me. and ran away.".. It was revo.r in dispute. tht the appellant "ran' away 0 He admittod i -c.' Nor is it disputed iht h was th'3n'uner lawful arrs -t. I -t'hihk that the offence was cc.mmittei even if the facts ae .amusinr - . I will o sustain the cnVictionS 'n the third cuiyt e . The totality of-tliis is that the apeal is allowed on the first and second c..-unts, • The convictions and sentences thereon are 'iashcd and set asid. Howov-r, the appeal -is dismissed as regards covictiun oh the third cpint. It sems to e- 'hou'h, that the sentcnc of 12 mc;nths' impri..nment was unnocssarily on the hitch sidc on d dumi-fi'st offender0 The &pe1lnt has been in prison for over seven'months niw 0 That is suffiicnt in the circumsta- nces of the cso. I: will therefore r-educo the, sntenco to result in his immediate reLease0' - A " • ••. ia - - • • K. S. LUG AU - •' -: JUDGE • HIGH COURT 7'L sNZ • :. • , •, -. 1HOCTOJ780 •.• --