19810626 TZHC Tanga

'if- - ,. IN THE HIGH COURT OF TAZANIA AT TANGA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 89/79 (orig. Criminal Case No.283/78 . (ofMuheza District. Court. . Bf,ore:: W.S. Mkulungu, Esq., D/M WIMKAYANDA .....,.APPELLANT versus THE RPtrnLIC • • . . RES POIWENT :. Cffae: Unlawful wounding c/s 228 .(i) .Q±' th .... Penal Code. - TUDGEMENT J. -I Sisya, J:- '( ..:_ . •. . .. . o.. . The oornplainant in the case, it is undisputed, was severely assaulted. The PF3, Exh P1, is there to bear testimony on this as- Jot pect of the case. He had a cut of the lower lip, a traumatic extra- ction of one tooth and a traumatic laceration of the buccal mucosa. .:• . The appellant was convicted of unlawfully wounding him, i.e.. the .............................. .; . .. . ). ' r. ,complainant, and he was sentenced to eighteen months imprisonment. The question in this appeal which falls for consideration is whether the appellant was sufficiently identified as the person who wounded the complainant. The learned Ztato Attorney was clearly of the view that he, appellant, ias not sufficiently identified.. In advancing this proposition he appears to have dwelt primarily :or 4•)•.' on the evidence of one Brown Katongo (DWI). This wtsstestified that on the material evening he found the complainant and one John Aiphonce fihting. Both of them had injuries and he took;them to hospital.. While they were, on the way the complainant to1d him that. he was actually attacked by the appellant. During cros—examination DWI said that actually John Aiphonce was only separating the comp- lainant and another person whom he did not know when ho, i.e. John, .... .: . : h. too got hurt. . ' •. . . ,.. ............. 1':'' .......... The complainant himself testified that on the rhaterial even- OJi • ing he met the appellant's wife on the way. The latter then enquired • . I om him as to where he was cu.rrontly.rosiding.- It is common- knowledge that the appellant and the coffiplaiihnt were not strangers in theoye8 of each other 1 In fact the c6tnlafnant was the appe- liant's tiiant for sometime before moing to his new residence. The complainant told the appeliant's-i that sincoit was night time she would not be able to see -his place. Thereafter the two of them passed each other as the,r were moving in opposite directions. Immediately thereafte hThirst the appellant who, apparently, was behind hiswif 'Without uttering a word. ho, i.e. appollant, pounced on the complainant and began to assault him.. In the attack the comp1inan'fe1Ff le ground. The appellant followed there and bit off a piece of his lower lip. The complaiant managed to push away the appellant who theiook to his he1s. Admittedly the incident took place in the evening but, as aforeaid,.the two persons Were not strangers in the eyes of 'eachl' other, The complainant's consistency as a witness can not be &oubted bocauso he mentioned the appellant at' ble opportunity, i.e 1 to DWI. Not only that. also the : 0 vr193 of thoàpo1lants loader of ten hous inuiiaflashid (Pw3). Thiswitnose testified that on the very same •tho assault the appellant approached her and reported to hrthat. r th complainant had been making trr,uble to his wife. --Iili his defence the appellant himself made no mention, ç Of this. Instead he merely denied assaulting the complainant. On 72 . my part, in view of the evidence of the complainant and'tha of P1 13 considered together I am satisfied that the idontifioatin of the appellant was sufficiently established. Forthis etson I, most respoctfIfly, distgree with the learned State A!tt orney l s proposition. The conviction is sound as tht same is suppor't. by the evidence. Turning to sentence, as a first offendol' the same is F. suff1ionto meet the justice of the case."' • 5..; - ' SC - - - ' - ',: .- - - -' .1-- •.. 3 c. In the final result this appeal fails and it is hereby dismissed ix its entirety. Delivered in open Court at Tanga this 26th day of Juno, 1981, (H. )7. D.''Slsya) JUDGE A